Florida Appellate Court Upholds Admissibility of Data from Auto's "Black Box"
As is typical with media coverage of judicial rulings, the story was reported on ABC's evening news broadcast (and is recapped at the ABC news web site) a shade more breathlessly than the decision may deserve -- i.e., as though the opinion altered the basic national legal landscape on the use of EDR data in court, whereas in fact the ruling seems a relatively routine application of basic evidentiary principles (within one state court system, in a jurisdiction that does not follow Daubert). We're not saying we agree or disagree with the admissibility decision. We don't know enough about EDR technology to be sure about that. But we do think the outcome is unsurprising -- given, e.g., that the National Highway Traffic Safety Administration has been relying on EDR data for a decade. And indeed, although ABC says the Florida decision "appears to be the first of its kind in the country," the Florida opinion itself (if only ABC's reporters had read it) cites an earlier Illinois case reaching the same result. See Bachman v. General Motors Corp., 332 Ill. App. 3d 760, 776 N.E.2d 262 (4th Dist.), appeal denied, 202 Ill. 2d 598, 787 N.E.2d 154 (2002).
What's news to many, no doubt, is that the majority of American vehicles currently sold actually already have EDR devices, monitoring the habits of their drivers, though the drivers are commonly unaware that the devices exist. The ABC report appears to find this discomfiting. "Use of the information also raises privacy concerns," the ABC story says, rightly enough, before going on to stumble: the "concerns" ABC mentions are "about whether drivers should own the rights to their black box data."
Well, no. Evidence may be subpoenaed or seized for use in judicial proceedings regardless of who may hold any relevant rights to it. If we write a copyrighted novel about how we killed our wicked stepsister, "owning the rights" to the work will not save us from having the prosecution question us about the novel at our murder trial -- just as our ownership of the axe we used to kill her won't stop the murder weapon from showing up at trial as Exhibit A.
As for true "privacy concerns," it can meanwhile be wondered how much legitimate expectation of privacy drivers really have in the velocity at which they navigate one to two tons of metal along public thoroughfares. It is true that something feels slightly creepy about all of this, but we suspect it is the notion of being watched unawares -- for which the only remedy to which we are entitled beyond reasonable debate is the remedy of being told about the watching. It does probably benefit everyone to be reminded that most vehicles with airbags now also have EDR's, so that even when the passenger seat is empty, the typical motorist is now taking a silent witness along for the ride -- a witness now officially deemed reliable, within the fourth appellate district of Florida.