X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
As the law struggles to keep pace with technology, a battle is emerging that could eventually drown out the music copyright wars. The battleground is cars and the issue is privacy. Advances in technology have been dizzying. Some cars call for help when they’re in an accident. Some have radar that adjusts cruise control when they approach slow vehicles. In some states, automatic cameras nail drivers who run red lights. California just spelled out who owns the data in a car’s “black box” (for those that have them). These developments present opportunities to improve safety, reduce congestion and enforce the law. They also pose major legal questions. Consider the uproar last summer in England, when the government acknowledged it is considering plans to mandate electronic identification chips in every car. Roadside sensors would read the vehicles’ data, which could include basic information about cars and their owners — plus matters of interest to law enforcement, like unpaid fines and delinquent inspections. “Watch out for spy in every car” warned a headline in the Times of London. The British Department for Transport declined interview requests. It had commissioned a report from the firm PA Consulting, whose Simon Smith said, “I’m not aware of any hard decisions that have been made about deployment.” His company’s report, which gave rise to the news coverage, was only a feasibility study, he said. Smith’s comments, and a parallel Europe-wide study conducted by Ertico, a nonprofit transportation technology group, made it clear that many of the high-tech ideas would involve enhancements to the basic chip. Radio-frequency identification could allow car owners to be automatically billed for bridge tolls — or for speeding. Smith called the plan for a national system, possibly in place by 2007, “technically feasible,” if the public accepts it. U.S. AND ENGLAND There’s action and discussion on this side of the Atlantic as well. Police officials speak cautiously about technology and underscore their respect for privacy. This despite the obvious advantage that sophisticated tracking would give them in crimes such as last year’s Washington, D.C.-area sniper murders. Many Americans ordinarily concerned about privacy found themselves hoping technology would find the white van the police sought (which proved to be the wrong vehicle). More recently, and in the same region, technology did come to the rescue after one crime. While driving in Montgomery County, Md., in July, Marna Plaia was thrown from her Mercedes Benz by a carjacker who drove off with her 3-year-old son and 18-month-old daughter strapped in their car seats. Another motorist in a Mercedes came to her aid. Both cars had TeleAid, a service which, like General Motors’ OnStar, allows drivers to communicate via cellular telephone technology with operators who track their locations through global positioning systems (GPS). The TeleAid operator was able to listen to sounds in the car, confirming that the children were OK, and to relay the car’s location to the police, who caught the carjacker. This same technology also allows operators to disable stolen cars — even while they’re in use, though most seem to wait until they’re turned off. Some services offer automatic collision notification, alerting authorities when air bags deploy. They will soon be able to dispatch information about crash severity and likely injuries. (One car executive said he’s heard of cases where police were dispatched to minor accidents only to find uninjured, but intoxicated, drivers who were not glad to see them.) A few years ago, Progressive Insurance offered Texas drivers with GPS-equipped cars monthly rates that varied depending on where, when and how much they drove. Drivers saved money, the company reported, but it ended the practice because not enough cars have GPS. Other technologies sound like science fiction. One in development involves cars communicating directly with other cars and the infrastructure. For example, when a car hits an ice patch, it will instantly beam the information to other cars and to electronic signs, which will post it. A 1992 article by Las Vegas car designer and engineer Peter Bryant predicted a car’s internal diagnostics would soon be capable of informing a driver when his tires were badly worn. It could even be programmed to do something about it. Acting like the officious computer HAL in “2001: A Space Odyssey,” the car might warn the driver, reduce his speed to 15 miles per hour and, if he continued to drive, inform his insurance carrier and the motor vehicle department. Does all this mean we’re on the verge of a government program like the one apparently contemplated in England? The consensus is that we’re not. Texas entrepreneur David Cook, the original founder of Blockbuster Video, is a pioneer in this field. He developed the first electronic toll, installed in Dallas in the late 1980s, and designed electronic tags that allow railroad cars to be tracked in the U.S. and France. Told of the putative English plan and 2007 target date, Cook just laughed. The idea, he said, is “ridiculously optimistic.” For starters, the technology lacks international standards. He once aspired to place electronic tags on big box containers. They travel the world, and there’s a need to track them, he said. But he couldn’t convince ports to mandate a common radio band. He can’t imagine that England would set standards unilaterally. And it would not surprise him, Cook said, if it took until 2007 just to lay the groundwork. Whatever happens in England, said Jim Lewis, a spokesman for the Intelligent Transportation Society of America, the U.S. equivalent of Europe’s Ertico, he doesn’t believe we’re speeding down a regulatory superhighway. Yes, 15 states now have cameras that capture drivers running red lights. Yes, electronic toll tags are expanding all the time and have the capability of nailing speeders — as automatic cameras do. But England is much smaller and more centralized. “We are a collection of united states,” Lewis said. And though the federal government sometimes uses money to encourage states to follow transportation policies, there’s an enormous amount of autonomy. We’re also more litigious than the British, he added. “You can run into a wall of litigation when you do things that people don’t like.” What’s driving a lot of the action in the U.K., according to Frank Viquez, director of automotive electronics for Allied Business Intelligence Inc., is traffic congestion in London. “Depending on how you look at it,” he said, “it’s either a ploy to make more money or an effort to reduce congestion for the good of the citizens.” A U.S. version “is not going to happen anytime soon,” he agreed. Which is not to say that Viquez doubts that technology is expanding rapidly. Nor would he be surprised, he said, if some applications are eventually mandated. But he believes it will be market-driven and will happen only after they are widely used. The technology that has attracted the most attention here is the so-called black box, which is the subject of a new law and a proposed regulation. It was also prominently mentioned following the accident involving South Dakota Republican Congressman William J. Janklow. In August, Janklow’s car struck and killed a motorcyclist, and he was later charged with speeding, running a stop sign, reckless driving and felony manslaughter. The police pulled the box from Janklow’s 1995 Cadillac hoping to obtain evidence. A GM spokesman said it didn’t record what the police sought. Technically called an event data recorder, the device is actually silver and about four inches square. It doesn’t record voices, only data. Its primary function is to control a car’s air bags, and it only records when they deploy — or nearly deploy. Recorders were pioneered by GM in the 1970s. The company used them to assess air bag performance and, in the 1990s, recalled nearly 1,000 cars after determining that some were malfunctioning. GM is the only manufacturer to install them in all its cars. But not all cars with air bags have recorders, and not all recorders are the same. Some recorders also capture information about a few car functions for a second or two before the bags deploy. Others capture many functions, such as speed, seat belt use and brake status, for a full five seconds. In addition to the differences in recorders, there are also differences in the form of the data. Some data can be easily downloaded onto a laptop computer; some can’t. BLACK BOX ADVOCATE Dr. Ricardo Martinez would like black boxes mandated in all cars. In October 2001, he petitioned the National Highway Traffic Safety Administration (NHTSA), urging it to create a rule. “In 2000,” he wrote, “41,831 people were killed and an estimated 3.2 million people were injured in over 6 million police-reported vehicle crashes … . Understanding what happens in a crash is essential to preventing these injuries and deaths.” Martinez is a medical doctor, but no ordinary one. He’s CEO of Atlanta-based Safety Intelligence Systems, a company that develops technology to improve automotive safety, and was NHTSA’s top administrator from 1994 to 1999. He’s also aware that the agency was petitioned twice before and declined to make this rule “because the motor vehicle industry is already voluntarily moving in the direction recommended.” In an interview, Martinez estimated that 14 million cars already have downloadable recorders, and another 25 million are not easily downloaded but do capture data. Subtracted from about 220 million registered vehicles, that still leaves nearly 180 million with neither. “We are really in the dark ages of data,” he said. “If we practiced medicine the way we investigate car crashes, we’d all be sued for malpractice.” He called the recorders “a fundamental revolution in our understanding. And I saw this in medicine, when we invented the CT scanner and our understanding of head injuries just changed dramatically.” Though NHTSA was established in the 1960s to “force technology,” he said, technology has advanced so quickly that the agency plays catch-up now. The comment period for his petition has been extended. “You can extend the comment period forever, if you want to,” he said “They can go into rule-making tomorrow, if they want to. The real question is: When will they do something?” Nearly 80 comments have been filed. Researchers, investigators and emergency responders were most positive. Many negative remarks were filed by truckers. Martinez said they’d confused the event data recorder with one designed to track their hours and routes. The response most eagerly anticipated was that of the Alliance of Automobile Manufacturers, which represents DaimlerChrysler, Ford, GM, Toyota and six other large manufacturers. Its letter, filed in February, recommended that NHTSA continues to oversee an effort to hammer out standards, but favored voluntary implementation. The marketplace, it asserted, is best equipped to determine what consumers want. “Voluntary implementation of [event data recorders] may facilitate the development of consensus on how to best to [sic] manage the legal and privacy implications … by allowing the policies to evolve through public debate and judicial precedent,” the statement said. CALIFORNIA LAW The debate and the litigation have begun. Black boxes have figured prominently in several civil and criminal cases. And the privacy debate has extended well beyond the confines of NHTSA’s comment log. It was the impetus for the law adopted in California last month — the first in the country. Sponsored by Republican Assemblyman Bill Leslie, who has introduced previous laws designed to protect privacy, it says that the car owner owns the data. If law enforcement or legal adversaries desire access and the owner refuses, their recourse is to obtain subpoenas. The law also requires car manufacturers, beginning in July 2004, to include information in their owner’s manuals. Most lawyers interviewed found the law reasonable, though one said data should be controlled by drivers. Whether a car is owned or leased, she said, the driver has the expectation of privacy. For Stephen Keating, executive director of the Privacy Foundation in Denver, “The main point is consumer awareness. You have a surveillance technology that’s been installed in 25 million vehicles, unbeknownst to the drivers of those vehicles.” A survey last year by the Insurance Research Council found that almost two-thirds of those surveyed didn’t know cars had recorders. Recently, Keating conducted a small survey of his own. He called three car dealerships in Denver and asked salesmen about them. None had a clue, he said. Privacy advocate Katherine Albrecht is troubled by the ethics. “You’re asking drivers to serve as unpaid research subjects, which I don’t think they should have to do if it also means they run the risk of having data used against them.” Albrecht, founder and director of Consumers Against Supermarket Privacy Invasion and Numbering, is also a doctoral candidate at Harvard University who depends on research subjects for her work. But they’re always volunteers, she said. If recorders become mandatory, there won’t be a choice. “I think it’s incumbent on us to be reasonable about what we request,” said David Snyder, assistant GC at the American Insurance Association. They support the NHTSA petition, and Snyder called the California law “a good balance” and “a good beginning for other states.” But he’s well aware that people are suspicious of the police, insurance companies and regulators — not to mention lawyers. “Lawyers can be facilitators while protecting privacy rights, or we can be obstacles,” he said. He hopes they won’t get in the way. But he also worries that some players might overreach — law enforcement might use technology to track people, or some insurers might use it against customers. “The public won’t tolerate that,” he warned. A recent example seemed to prove his point. Connecticut-based Acme Rent-A-Car monitored customers’ speeds using GPS. It then tacked “fines” onto the bills of those it caught speeding. Angry customers complained to the state’s consumer protection department and the media. Acme has since ended the practice. The Privacy Foundation’s Keating summed up by quoting George Bernard Shaw: “Science does not solve one problem,” the playwright said, “without creating ten more.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.