Much has changed in just two years since we first wrote an article about Electronic Data Recorders (EDRs). Most likely the average person still doesn’t know their car is recording many of their actions as well as the car’s functions as they are driving. Nearly 96 percent of the automobiles manufactured in 2013 included EDRs. Beginning in September 2014, nearly all new passenger vehicles were mandated to have the technology. EDRs function much the same way as a “black box” on an airplane. This is not new technology, and has been used to monitor air bags for nearly two decades in passenger automobiles. Although the device is constantly recording data, it does not transmit the data, and only saves a segment of data preceding a crash.
The EDR is constantly recording inputs from the vehicle that are recorded until an accident occurs. EDRs in personal vehicles do not record an audio or video segment from a wreck; instead the device records important data just before, during, and after the crash pulse. Until last year the installation of these devices was voluntary by car manufacturers and the types of data being recorded varied greatly.
However, in the past year, the National Highway Traffic Safety Administration (NHTSA) mandated that nearly all new passenger vehicles must be equipped with EDRs. This mandate came after NHTSA initiated Final Ruling 49 CFR Part 563 in 2012, which set minimum standards as to the data that must be recorded if auto manufacturers choose to include an EDR in their vehicles. Prior to these standardized rules, automakers were left to determine what data was collected, how they collected it, and how it was transferred off the EDR. With no standardization, quite often the data was difficult to retrieve and, once downloaded, difficult to interpret.
Many believe NHTSA was prompted to standardize the retrieval method and data format following the Toyota unintended acceleration crisis. Our firm was heavily involved in the litigation that arose as a result of the defective computer system that controlled accelerators. Congressional hearings revealed that Toyota only had one computer in the United States that could read certain data from the EDRs in its own vehicles.
Final Ruling 49 CFR Part 563 set a minimum requirement for crash data that must be recorded by an EDR. Some of the minimum requirements are that the EDR record the vehicle’s speed just prior to impact, throttle and brake application, seat belt use, and airbag deployment. Also included in the new standards is a requirement that, if auto manufacturers choose to place an EDR in a vehicle, they must disclose this fact in the vehicles owner’s manual. With all auto manufacturers required to collect the same set of data and standardized methods for downloading the data, much of the uncertainty surrounding EDR downloads should be resolved.
Although the new standards address many of the issues regarding what EDRs must record, many questions remain as to what the data can be used for, and who is entitled to collect the data. To date, there is not a national standard as to who the data belongs to and what a permissible use of the data is. It is NHTSA’s position that the data belongs to the owner of the vehicle. However, in January 2014, the Senate Commerce Committee held an executive meeting approving the “Driver Privacy Act,” which allows courts and administrative authorities to authorize access to data stored on EDRs.
It is still somewhat unclear exactly who is entitled to the data on a given EDR under Federal law. For that reason, many states are taking matters into their own hands and passing laws to clarify who is entitled to retrieve the data. Fourteen states have passed laws that deem the EDR data to be the vehicle owner’s property. However, law enforcement officers and those involved in civil litigation can petition a court for an order granting them access to the data. In other states, there is no requirement for a court order for third parties to access the EDR data. However, written consent to download the EDR from the vehicle’s owner seems to be universally recognized as a proper means to access the EDR data.
One of the greatest unanswered questions surrounding the rise in EDR prevalence is, what can the data be used for? As one can imagine, automakers, law enforcement agencies, insurance companies, and individuals involved in civil litigation all could need this valuable crash data for various reasons. Lawyers in our firm have been downloading and using EDR data for years. The snapshot of the crash sequence often tells the story of not only how the vehicle performed in the crash, but the driver’s response as well. This information is invaluable when reconstructing an accident sequence. Following an accident, it is very important to secure the vehicle and the EDR and get the owner’s consent to download the data if litigation is anticipated. The data it contains may be vital in building a case.
We will write next month on some of the problems lawyers in our firm who handle product liability cases face relating to the use of EDRs. If you need more information on the use of EDR data or anything relating to the EDRs generally, contact Evan Allen, a lawyer in our firm’s Personal Injury and Product Liability Section, at Evan.Allen@beasleyallen.com, or at 800-898-2034 or 334-269-2343.
Sources: www.techlawjournal.com and www.consumerreports.org
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