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Legal Ramifications for Automobile Black Boxes
by Perry J. Zucker

Vehicle accidents occur every few seconds.  The proximate causes of these accidents rely on engineers and investigators.  Some of the determining methods they use are physical evidence, charts, computer simulations, and the latest buzz technology is called the "Black Box" data recorder, which are synonymous with airplane crashes.  Essentially the "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 air bag(s).

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

In both types of incidents the vehicle's processor (RAM) stores in memory, pre and post crash data.

The "Black Box" 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 air bags 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 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 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 vehicle for possible evidence.  The real questions become does law enforcement has 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 vehicle engineers that are also certified repair technicians who can be a trier of facts concerning this technology; satisfy Frye / Daubert / Kumho Tire.

About the Author:

Perry  J.  Zucker, Degreed Engineer (several degrees in engineering as well as technology), provides technical reports, pre-trial preparation, and expert witness testimony concerning vehicle related accidents (reconstruction), traffic violations, general accidents, and product liability cases, for both plaintiffs / defendants and civil / criminal.  He is a member of SAE, IEEE, ASME, State Appellate Div. Expert Panel, ASE certified, State vehicle inspector and a certified speed measuring device operator / instructor.  His office can be reach at (718) 375-5063 or visit him on the web at http://www.trafficdoc.com.