Should Your Car Testify Against You?

Many new cars today are equipped with “black boxes” – recording devices that keep information on how fast or far the car goes, or even where it goes or when. They work in a similar way to the ones in airplanes. It should come as no surprise, then, that police are using the information contained in these black boxes to investigate and then prosecute traffic crimes.

In a Delray Beach DUI Manslaughter case, the police went ahead and downloaded the black box data from a car without a warrant. They then went back to a judge to apply for a warrant to get the data, but the judge denied the warrant because it was too late. The trial judge (different from the judge who denied the police a warrant) then excluded the data from the trial because the police didn’t get a warrant before downloading it. The judge’s decision is being appealed.

Cops and prosecutors want to get and use this black box data without having to get a warrant. Their argument boils down to this: if all the black box does is record what you do in public – how fast you drive, how hard you hit the brakes, etc. – then you don’t have a reasonable expectation of privacy in that data.

That sounds pretty reasonable, right?

Consider these scenarios:

You pull into your driveway after your commute from work, and as soon as you stop your cell phone buzzes with a new email notification. The subject line shows up as “COUNTY TRAFFIC TICKET NOTIFICATION.” You open the email and it’s a traffic ticket for a rolling stop five blocks from your house for seven minutes ago. There were no cops at that intersection – your car recorded your driving behavior and gps location and sent the information to the local traffic control office, who sent it to the traffic cops for processing, who sent you a ticket for a rolling stop.

You are driving on the interstate at the speed limit when the car pulling a trailer in front of you starts to swerve. You accelerate well above the speed limit to get around what is quickly becoming a dangerous situation. You pass the car and trailer, and moments after you do it swerves sideways to a stop, blocking the roadway. Your email inbox chimes with a speeding ticket.

You roll your window down and light a cigarette. Your two-year-old is strapped securely in their approved car seat in the back seat. The next day you get a visit from child services who are starting an investigation for child neglect following your car’s report of an detecting of cigarette smoke in the cabin when the child seat was bearing a child-size load.

Essentially, the police want to make your things testify against you. Your car’s black box becomes a potential gold mine for city and county revenue through traffic citations. Cell phones become police tools for finding and punishing sexting teens. And so forth.

But if the Volkswagen scandal has taught us anything, it’s that the computers that make our cars run or our thermostats turn on or our Amazon accounts recommend other products aren’t impartial – they’re biased. We are entering a world where our devices lie to everyone, even their owners. Even the government, as VW showed. So why should we go along with the government’s (the same government that criminally prosecutes people for figuring out how these devices work) acceptance of something that could lie, for whatever reason, and we can’t ever know if it’s telling the truth? If it was hacked? The DMCA protections that companies get can essentially mean that there’s no way to cross-examine your things if they do, in fact, testify against you.