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Should police be able to use your car's built-in black box recorder against you? Ronnie Schreiber takes a look.

Much of the development work done on automotive EDRs has been by the Vetronix company, acquired by Bosch in 2003. Their crash data retrieval software has been available to investigators and others outside the auto industry since 2000.

Though the the various EDRs were implemented for the purpose of research and diagnostics, as the data recorders proliferated, motorists and civil liberties activists have become concerned over the privacy and other legal aspects of the EDRs. Motorists have become concerned that in the case of a traffic accident or citation that their own cars' data recorders will be used against them.

Private accident investigators seized on the data recorders as a tool to use in reconstructing accidents. Many of those accident investigators work for insurance companies and their attorneys. The profit motive being what it is, those investigators are looking for any data that will implicate the driver as negligent so claims can be denied or subrogated to another driver's insurance carrier.

An insurance company, though, is a private entity. Your contract with them may, in fact, give them access to your car's EDR (check the fine print on your policy). When it's a government agency trying to fine you for a traffic infraction, the concerns over privacy increase. When that agency is the prosecutor's office charging someone with a criminal infraction those concerns start getting termed "potentially illegal search and seizure" and a violation of the Fourth Amendment to the United States Constitution.

George Constantine Xinos was convicted by a California jury of vehicular manslaughter as well as other, alcohol related driving offenses, after running down pedestrian Marcus Keppert. The conviction was based, in part, on speed and braking data retrieved by the San Jose Police Department from the SDM in Xinos' SUV.

Now, the California Court of Appeals has overturned Xinos' conviction on the grounds that the data retrieval was indeed a Fourth Amendment violation. It seems that the court distinguishes between a bag of marijuana sitting on your console and data stored deep within your car's electronic brains.

In ruling that the data on Xinos' car's event data recorder had a reasonable expectation of privacy, the court said:

"We do not accept the Attorney General's argument that defendant had no reasonable expectation of privacy in the data contained in his vehicle's SDM. The precision data recorded by the SDM was generated by his own vehicle for its systems operations. While a person's driving on public roads is observable, that highly precise, digital data is not being exposed to public view or being conveyed to anyone else. But we do not agree with defendant that a manufacturer-installed SDM is a "closed container" separate from the vehicle itself. It is clearly an internal component of the vehicle itself, which is protected by the Fourth Amendment. We conclude that a motorist's subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle's SDM."

Furthermore, the court rejected the prosecution's claim of probably cause. The data was downloaded months after the original investigation when one of the officers learned that the SDM recorded data even when the air bags did not go off, as happens in car/pedestrian accidents.

In cases of fatal collisions between a vehicle and a pedestrian, the particular facts and circumstances may give rise to probable cause to believe the SDM contains evidence of a crime. But in this case, the prosecution failed to show that the objective facts known to the police officers at the time of the download constituted probable cause to search the 25 SDM for evidence of crime. The download occurred long after the collision and criminal investigation. The officers who conducted the download were merely complying with an unexplained request of the D.A.'s Office and believed no relevant data would be found. The download of the data was not supported by probable cause.

That's not as sweeping a decision as concerning the Fourth Amendment so it's possible that a data dump of your car's EDRs might indeed be legal if there is court sanctioned probably cause. In any case, pun intended, the police departments and prosecutors are not going to willingly give up a powerful investigative and evidentiary tool. You can expect the matter will eventually be decided by the Supreme Court.