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State Appeals Court Says There's An Expectation Of Privacy In Vehicle Data Recorders

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An interesting decision has been reached by the Florida Appeals Court as to Fourth Amendment protections for vehicle "black boxes." The black boxes -- which are a mandatory requirement in new vehicles -- record a variety of data in the event of a crash. (h/t FourthAmendment.com)Charles Worsham Jr. was the driver in a crash in which his passenger was killed. His vehicle was seized and impounded by police. Twelve days later, police accessed the data in the black box without obtaining a warrant. Worsham challenged the lawfulness of the warrantless search. The police maintained the black box was full of third-party records which required no warrant or consent from the vehicle's owner.The court sees the issue differently. In a relative rarity, the state Appeals Court decides [PDF] to get out ahead of the issue, rather than wait for precedential decisions to trickle down from the federal courts. It looks at the data harvested by the black box and suggests the amount gathered will only increase in the coming years. Rather than wait until then to make a call on the Fourth Amendment merits, it draws the line now.Citing the Supreme Court's Riley decision (which introduced a warrant requirement for cell phone searches), the court concludes the crash data contained in the black box has an expectation of privacy.

A car’s black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy. Modern technology facilitates the storage of large quantities of information on small, portable devices. The emerging trend is to require a warrant to search these devices.[...]Although electronic data recorders do not yet store the same quantity of information as a cell phone, nor is it of the same personal nature, the rationale for requiring a warrant to search a cell phone is informative in determining whether a warrant is necessary to search an immobilized vehicle’s data recorder. These recorders document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible “mechanical” parts of a vehicle. Just as cell phones evolved to contain more and more personal information, as the electronic systems in cars have gotten more complex, the data recorders are able to record more information.
Also of importance is the difficulty of extracting the information from the black boxes.
Extracting and interpreting the information from a car’s black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.
Not only that, but recent legislation (the Driver Privacy Act of 2015) specifically states that the contents of data recorders belong to the vehicle's owner, not the manufacturer or any other third party.
The general rule of the statute is that “[d]ata recorded or transmitted by an event data recorder . . . may not be accessed by a person other than an owner . . . of the motor vehicle in which the event data recorder is installed.”
The dissent makes some good points as well concerning the application of the Fourth Amendment to data collected by a device many people aren't aware their vehicles contain. Even if the event data recorder harvests some information not observable from outside the vehicle, the information it collects has no intrinsic value to the vehicle's owner -- at least not at this point.
The data that the government extracted from the vehicle that was owned and driven by Appellee in this case was not information for which Appellee or any other owner/driver had a reasonable expectation of privacy. The data was not personal to Appellee, was not password protected by Appellee, and was not being collected and maintained solely for the benefit of Appellee. The EDR was installed by the vehicle’s manufacturer at the behest of the National Highway Traffic Safety Administration and, as distinct from Jones, the purpose of the data collection is highway and driver safety.
However, not all event recorders are as limited to what driving information they collect. NHTSA regulations only set the baseline. They don't prevent manufacturers from adding more data collection to black boxes. Right now, the recorders are of little use to anyone outside of law enforcement or insurance agencies. Still, it's nice to see a court be proactive on the issue, rather than wait until the Fourth Amendment issue hits critical mass.

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posted at: 12:00am on 07-Apr-2017
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European Commission May Join Gates Foundation And Wellcome Trust In Becoming An Open Access Publisher

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Open access isn't a new idea -- the term was first defined back in 2002, and arguably the first examples go back even further to the founding of arXiv.org in 1991 (pdf). And yet progress towards making all academic knowledge freely available has been frustratingly slow, largely because hugely-profitable publishers have been fighting it every inch of the way. In response to that intransigence, academics have come up with a variety of approaches, including boycotts, mass cancellation of subscriptions, new kinds of overlay journals and simply making everything available with or without permission. Here's another interesting move to open up publishing, reported by the journal Science:

One of Europe's biggest science spenders could soon branch out into publishing. The European Commission, which spends more than €10 billion annually on research, may follow two other big league funders, the Wellcome Trust and the Bill & Melinda Gates Foundation, and set up a "publishing platform" for the scientists it funds, in an attempt to accelerate the transition to open-access publishing in Europe.
It was quite surprising to see the Wellcome Trust start its own rapid-publishing unit, called Wellcome Open Research, a move that seems to have encouraged the Bill & Melinda Gates Foundation to follow suit with the similar Gates Open Research platform, due to start publishing later this year. For the EU's main executive body to do the same is even more extraordinary. It's true that there has been no official announcement about the European Commission's publishing move, but the Science article suggests that it is likely:
A commission spokesperson says the two charities [Wellcome and Gates Foundation], which opted for a system in which papers are reviewed after publication, are "models," but that the commission is only "considering" the idea. But last week in Berlin, at a closed meeting of the Open Science Policy Platform (OSPP), European Commissioner for Research, Science and Innovation Carlos Moedas suggested a "decision" to create the platform had already been made, says Michael Mabe, CEO of the London-based International Association of Scientific, Technical, and Medical Publishers (STM). OSPP member Sabina Leonelli of the University of Exeter in the United Kingdom, who tweeted from the meeting, confirms Mabe's assessment.
For three giant funding organizations -- the Wellcome Trust, the Bill & Melinda Gates Foundation and the European Commission -- to be driven to take this step shows just how frustrated they all are with the academic publishing world's unhelpful response to two decades of calls for open access. It also underlines that they now seem determined to open up the research they fund by bypassing completely the traditional publishers who are proving so obstructive.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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