Federal Government May Soon Require "Black Boxes" in Cars
by Judy Kent
Washington, DC - Possibly coming soon to a new car near you - mandatory tracking and recording of your automobile usage. Will Record Where You Go and When, Plus How Fast and How Well You Drive
So says National Center Adjunct Fellow Horace Cooper in a just-released National Center for Public Policy Research paper, "Coming to a Car Near You? The Department of Transportation's Creepy Black Box."
Cooper says the federal government could soon adopt a measure - already approved by the U.S. Senate - mandating that every new car sold in the United States after 2015 include an event data recorder (EDR) - a so-called "automobile black box."
The EDRs are expected to monitor speed, driving habits, locations visited and distances traveled, seat belt utilization, number and weight of passengers carried, and perhaps some 15 other different data measurements. Under the provisions of the measure adopted by the Senate when it voted to reauthorize federal highway transportation programs this summer, the U.S. Department of Transportation, not the car's owner, would determine exactly what data the boxes would record.
"Essentially supporters argue that being able to download the data from the EDR's memory will help law enforcement and even federal regulators to better understand what happened in the event of an accident and how the safety systems performed, and particularly in cases where other techniques are inconclusive, help establish culpability," says Cooper in the paper.
"The EDRs, if made mandatory, will provide a wide open door to the comings and goings of every American," adds Cooper. "Tracking not simply how fast you drive or whether you ride your brakes, EDRs have the ability to collect the location and distances of where you drive every time you get into your car. Want to know how often you eat out? Alternatively, how often you use the dry cleaners or go out for ice cream? Just ask your EDR."
Cooper continues: "If your spouse or business partner wants to know where you've been going during your lunch break, they can just ask the EDR. Do you sit too close to the steering wheel, too far? Could you stand to lose a few pounds? Are you an early braker? A late braker? Do you drive close to the shoulder or close to the centerline? Do you drive exactly the speed limit at all times? Do you travel the same roads when going to work? Do you have a new girlfriend that you're visiting frequently? Do you stay overnight? Just ask the EDR and you'll find that these answers and more are available."
Cooper believes mandating the use of black boxes in cars may be unconstitutional: "Earlier this year the U.S. Supreme Court confronted the issue of government tracking automobiles in United States v. Jones. In that case, an FBI task force had attached a GPS tracking device, without first obtaining a valid warrant, to an accused drug dealer's Jeep Grand Cherokee while it was parked in Maryland. For four weeks, the government tracked the movements of the Grand Cherokee with accuracy to within 50-100 feet. Remarkably, the federal government sought to claim that it was perfectly legal to gather this data and use it in court without a warrant. In a major blow against the surveillance state and a win for privacy, the Supreme Court ruled that this constituted a form of search protected by the Fourth Amendment. Unfortunately the ruling still leaves open the question of whether government mandated EDRs would be treated differently than surreptitiously placed tracking devices. Other remaining questions include what the standard should be for allowing warrants for these devices or how much data should be allowed in and over what period."
Cooper's paper, "Coming to a Car Near You? The Department of Transportation's Creepy Black Box," is available online at http://www.nationalcenter.org/NPA639.html. Other recent papers by Cooper for the National Center for Public Policy Research are available at http://www.nationalcenter.org/legal.html.
Horace Cooper is an adjunct fellow with the National Center for Public Policy Research, a member of the African-American leadership group Project 21 and a legal commentator. He taught constitutional law at George Mason University in Virginia and was a senior counsel to Rep. Dick Armey (R-TX) when Armey served as U.S. House Majority Leader.