Meet the Bill That Wants to Put Plane-Like Black Boxes in Our Cars

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Update: Forbes blogger and privacy expert Kashmir Hill noted that the post below originally made extrapolations from the language of the bill in question -- particularly in its assumption that the recording devices it mandates would track general trip information rather than crash-specific data. She's right. I've updated the post to reflect more specifically the types of voyage recording that the bill could potentially regulate, as well as her important catch, noted in the third paragraph, about changed language between different versions of the bill.

Infowars' Paul Joseph Watson, reading through Section 31406 of the "Moving Ahead for Progress in the 21st Century Act" (MAP-21) bill that's currently making its way through Congress, made a nice catch: The bill calls for "Mandatory Event Data Recorders" to be installed in new vehicles starting in the year 2015.

Yes. If the bill becomes law, cars manufactured in the U.S. will have black boxes -- similar to the recording devices that are standard inclusions on aircraft.

The privacy concerns here are obvious, though it's hard to know, precisely, how concerned we should actually be. "Event data recorders," on the one hand, could imply that the recording in question would be isolated to data surrounding crashes and other out-of-the-ordinary incidents. On the other hand, though, increasingly common are the types of black boxes that are issued by car insurance companies, which record not only crash data, but also trip length, trip speeds, acceleration and braking trends, and times of travel. A prior draft of the bill, Kashmir Hill pointed out to me, specified that the black box-like devices in question would "record up to 75 seconds of pre-crash data" -- which would seem to suggest the bill's original assumption that trip recording would be limited to accident tracking.

That specification, however, has since been stricken from MAP-21. And the current language of the bill purposely leaves open-ended the scope of the data recorders' recording power. The updated version leaves it to the Transportation Department, in consultation with Congress, to determine how much data the devices could and should ultimately record. (Two years after the law is enacted, the bill notes, the Transportation Department will be required to send a report to Congress -- which will include "recommendations on what, if any, additional data the event data recorder should be modified to record.")

That change is telling in itself, and a reason to think that "mandatory black boxes in your car" does, indeed, carry some shades of Big Brother. It's true, as Hill points out, that tracking devices are already present in some 60 million vehicles, both foreign and domestic. The question, however, is whether those devices should be mandated, and regulated, as a matter of law. As it's currently written, the bill has the potential to take Americans' prototypical symbol of freedom and individuality -- the car -- and render it just another piece of trackable infrastructure.

The bill tries to preempt these concerns, going out of its way to specify that the data recorders will be the property of the owners or lessees of the cars that contain them. ("Any data in an event data recorder required under part 563 of title 49, Code of Federal Regulations, regardless of when the passenger motor vehicle in which it is installed was manufactured, is the property of the owner, or in the case of a leased vehicle, the lessee of the passenger motor vehicle in which the data recorder is installed.") And the data recorded on the devices, more significantly, may not be retrieved by anyone except the owner or lessee.

However. That doesn't preclude the government -- or anyone else -- from demanding those data once they're collected, for legal or many other reasons. Here are the exceptions to the bill's "ownership of data" stipulation:

Data recorded or transmitted by such a data recorder may not be retrieved by a person other than the owner or lessee of the motor vehicle in which the recorder is installed unless--

(A) a court authorizes retrieval of the information in furtherance of a legal proceeding;

(B) the owner or lessee consents to the retrieval of the information for any purpose, including the purpose of diagnosing, servicing, or repairing the motor vehicle;

(C) the information is retrieved pursuant to an investigation or inspection authorized under section 1131(a) or 30166 of title 49, United States Code, and the personally identifiable information of the owner, lessee, or driver of the vehicle and the vehicle identification number is not disclosed in connection with the retrieved information; or

(D) the information is retrieved for the purpose of determining the need for, or facilitating, emergency medical response in response to a motor vehicle crash.

Yes. And loopholes, as we're reminded pretty much every day, are made to be driven through. As Kim Zetter reported today at Wired, just last week a federal judge ruled that evidence gathered through the DEA's warrantless use of covert GPS vehicle trackers was permissible as evidence to prosecute a suspected drug trafficker -- this despite the Supreme Court ruling that such tracking is unconstitutional without a warrant. A reminder that, for all the good that can come from the generation of new data about our lives, there will always be trade-offs and compromises. And those trade-offs, when it comes to our cars, could be coming very soon. MAP-21, Infowar's Watson notes, is "already passed by the Senate and set to be rubber stamped by the House."