Psst, Your Car is Watching You

By Margot Roosevelt

It was nearly 11 on a balmy June night in Muttontown, a New York City suburb. Two teenagers raced fast cars down a tree-lined thoroughfare. The 19-year-old, home from freshman year at Tulane University, steered a new Mercedes with a license plate that read 4MRNICE. The 17-year-old, a high school junior, accelerated a two-year-old Corvette. At an intersection, within a second of each other, both cars smashed into a red Jeep, killing a nurse and her fiance. At the hospital, one of the youths told a detective they were driving 50 m.p.h. to 55 m.p.h.

But unbeknownst to the teens and their families, there was a hidden witness to the race. A palm-size microcomputer, embedded in the Corvette's air-bag system, revealed that the car was traveling 139 m.p.h. The data, downloaded by police after the vehicle was impounded, convinced a grand jury to indict the youths on murder charges, based on "depraved indifference to human life." In the end, they pleaded guilty to manslaughter and assault, and are now serving a three-year prison term. "The minute the prosecutors had the speed from the 'black box,' they upped the charges to murder," says Richard Slade, whose son Blake was driving the Mercedes. "They had what they needed to force a plea down our throats."

Few Americans realize that their cars can tattle on them. But among those in the know--civil libertarians, law enforcement agents and consumer advocates--a debate is surging over the black boxes technically called event-data recorders (EDRs). While some welcome them as a safety measure, others fear them as an Orwellian intrusion. Nearly one-third of vehicles on the road today--and 64% of this year's models--contain the little-noticed chips and sensors. Unlike flight recorders on airplanes, these microcomputers don't capture voices, but they can retain up to 20 seconds of data on speed, braking and acceleration in the lead-up to a crash. For virtually all Ford and General Motors cars, and for a few models from other automakers, accident investigators can buy a modem-like device to plug laptops into EDRs and download the information.

This week, the Federal Government is expected to issue rules requiring automakers to standardize the recorders and make the information uniformly downloadable with commercial software. Thus, some manufacturers who have guarded black-box data as proprietary will have to make it accessible. In a nod to critics, the National Highway Traffic Safety Administration would also mandate that the devices be disclosed to car buyers.

The new regulations are likely to make the black boxes better known and therefore even more controversial. Some consumer advocates, such as Public Citizen's Joan Claybrook, want tougher rules compelling automakers to install EDRs in every car because objective crash data will lead to the design of safer cars and highways. Privacy activists want the government to prevent police and insurance companies from checking drivers' black boxes without permission. "We have a surveillance monster growing in our midst," says Barry Steinhardt of the American Civil Liberties Union. "These black boxes are going to get more sophisticated and take on new capabilities."

Such fears have prompted 10 states, beginning with California in 2004, to pass laws obliging automakers to tell buyers if their vehicles have recorders; the laws also restrict the downloading of data without car owners' consent. Eleven other states are considering similar legislation.

Meanwhile, in Congress, Representatives Mary Bono, a Republican from California, and Massachusetts Democrat Michael Capuano are sponsoring a House bill that would allow people to turn off their recorders--a provision that would require a complex redesign of air-bag systems. If EDRs are eventually installed in cars that can retain more than several seconds of data, says Bono, "information could be collected about our driving habits, and we might not even know it is happening."

Actually, such electronic snooping is already occurring in a limited way. Some transport companies equip their trucks with black boxes that can continuously record the hours and driving patterns of employees. Similar monitors are used by fleet owners for company cars. And parents can purchase devices for their teenagers' cars that capture up to 300 hours of data, downloadable onto a personal computer. Even more intrusively, the software can trigger alarms when the teenager exceeds a certain speed. But automakers would find it too expensive and unpopular to routinely install long-term recorders, insists W.R. Haight, an EDR expert and the director of San Diego's Collision Safety Institute: "Only paranoid alarmist pinheads suggest this technology could be expanded to spy on our everyday driving."

Nonetheless, privacy advocates are concerned that black boxes combined with global positioning systems, which will soon be common in automobiles, could lead to real-time surveillance, with police issuing speeding tickets for infractions never witnessed in person and insurance companies raising rates based on electronically supervised driving patterns. In what some see as a slippery slope, Ohio-based Progressive Insurance has offered 3.6 million customers the possibility of a $100 annual rebate if they install black boxes that gather six months of data and share that information. The theory: drivers proven safe should pay lower premiums.

But what if companies eventually demand access to EDR data before insuring your car? Last year North Dakota and Arkansas passed laws barring the use of black boxes to set rates or settle claims. What's important is to have a choice of whether to be monitored, says Robert Talley of the National Motorists Association. "Sometimes you just like the idea of being free in a free country."

But while politicians debate exactly how to deploy the devices, police and prosecutors are embracing them as a revolutionary tool. And in at least 19 states, judges have admitted the data as evidence in criminal trials. In Arizona, a Roman Catholic bishop was convicted in a hit-and-run accident after his car's black box showed that he had braked before impact, indicating that he had seen the pedestrian. A Massachusetts woman was sentenced to two years in prison after her SUV skidded on ice and hit a tree, killing her passenger. The car's recorder proved she was traveling 58 m.p.h. in a 40 m.p.h. zone. In Georgia, after a train hit a car, the lone auto survivor sued the railroad for $12 million. But a jury threw out the case when the car's EDR revealed it had halted on the tracks before the crash.

Black boxes exonerate drivers too: a Fort Myers, Fla., man was acquitted of reckless speeding, despite a witness's testimony that he was traveling over 90 m.p.h., because his truck's black box registered only 60 m.p.h.

In a Nassau County, N.Y., courtroom last year, almost everyone wept when Blake Slade and Kyle Soukup were sentenced to three years in prison. The youths cried as they apologized. The families of the betrothed who died in the Muttontown crash spoke of justice and forgiveness. Even the judge dabbed his eyes and choked up.

But the prosecution and the defense remain bitterly divided over the role of the black box. Slade's father Richard calls it "a violation of civil rights," while the assistant district attorney, Michael Walsh, praises it as "the strongest piece of evidence in the case." Neither had heard of EDRs before the crash, but today both agree on one point: motorists should be aware that their cars have recorders, and it's to be hoped that the knowledge will encourage them to drive safely. "Otherwise," Slade warns, "the black box can come back to haunt you."