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Legal Ramifications For The Automobile Black Box

By Perry Zucker

Essentially the "Automobile Black Box" is incorporated within the air bag system, which has three (3) basic components they are: the bag, inflation system, and sensors. In addition the vehicle's on-board computer's (ECM / OBD I / II) stores data in two types of categories. They are as follows:

Non-Deployment Incident is an event that is severe enough to gather information from the sensors but NOT severe enough to deploy the airbag(s).

Deployment Incident is an event that is severe enough to gather information from the sensors and to deploy the airbag(s).

In both types of incidents the vehicle's processor (RAM) stores in memory, pre and post crash data.The "Automobile Black Box" (EDR) can record informational data, such as: engine / vehicle speed (5 seconds before impact), brake status (5 seconds before impact), throttle position(s), and even the state of the driver's seat belt switch (on/off).

Leading Court Case

In the case of Bachman v. General Motors Corp. which was litigated July 2002. Ms. Bachman (Plaintiff) was driving her 2 week old Chevrolet Cavalier when the airbags deployed at about 40 mph knocking her hands off the steering wheel and causing a collision with an oncoming vehicle. The Plaintiff claims that the air bag was defective. GM's two experts testified about the automobile black box (data recorder) and the vehicle's electrical system. The Illinois court held that the data and system(s) was admissible under the Frye rule. The Plaintiff's argued to the Illinois appellate court that "The technology has not been reviewed by independent experts" and was not admissible. However, the appellate court upheld the lower court decision, based upon the technology from the data recorder was from a microprocessor, which is used in many consumer products and is admissible under the Frye rule.

Privacy Concerns

Several questions remain unanswered. Who owns the downloaded data? Some vehicle's manufacturer (OEM) claims that the algorithms are proprietary and the technology belong to them. In criminal cases, law enforcement can impound the defendant's vehicle for possible evidence. The real question become does law enforcement have the right without a court order to obtain the data from the black box (assuming the codes are available), if the vehicle is not impounded?

Does the defendant have the rights to have his/her own expert to observe the downloading of the data? Secondly, does the defendant's expert have a right to download his own data? Does insurance carriers have a right to this data, under their policy? Does rental / leasing company have a right to surcharge the rentee / lessee, if he/she is notified about the technology? Does the rentee / lessee have a right to observe or have his own expert review the data? Can the data assist motorists in traffic court concerning speeding tickets, etc?

Conclusion

The answers to many of these tough questions will indeed be addressed over the next few years whereby there will be a downpour of litigation regarding the admissibility and the use of "Black Boxes". The courts will have to rely on qualified engineers that are also certified repair technicians who can be a trier of facts concerning this technology; satisfy Frye / Daubert / Kumho Tire.

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