Car Black Box Data Can Be Used As Evidence, Court Says

June 08--The sheer violence of the crash told police that Ryan Safka was speeding on a Pittsburgh highway before his car slammed into a concrete barrier and ricocheted into the woods, killing three passengers.

But the scene state troopers were left to investigate in the wee hours of Feb. 21, 2010, had few of the clues investigators normally use to reconstruct the final moments before a crash.

Safka's Dodge Caliber was airborne for nearly 150 feet after it vaulted a steel guardrail and smashed through a thicket of trees. The absence of tire tracks or other marks on the ground left troopers unable to say with certainty how fast the car had been going.

So state police turned to the electronics in Safka's car.

A black box behind the center console contained the information troopers needed to prove that Safka, 19 at the time, had been driving at more than 105 mph when he misjudged a curve, with fatal consequences.

After Safka's trial, his lawyer filed an appeal challenging prosecutors' use of the black box data.

In a 2-1 decision June 3, Superior Court Judge Jack Panella wrote that the black box data passed a test for admissibility of scientific evidence, finding that the collection of data from automobile electronic systems is a widely accepted and well-established technology.

Safka's conviction was upheld and he continues to serve 21/2 to six years for vehicular homicide, involuntary manslaughter, reckless endangerment and other charges.

The decision in Safka's case is the first time a Pennsylvania appeals court has ruled on the use of information from black boxes -- also called vehicle event data recorders -- in criminal prosecutions and it adds to a debate among those who fear the devices invite new privacy breaches.

At least four other states -- Florida, Illinois, Massachusetts and New Jersey -- also have approved the use of black box data to prove the speed of a vehicle involved in a crash.

"It's powerful evidence, especially in the hands of a capable crash reconstructionist," said Max Little, who instructs prosecutors on traffic safety issues for the Pennsylvania Association of District Attorneys. "It provides a clearer picture, corroborates other evidence and fills in gaps."

Lehigh County District Attorney Jim Martin said his office routinely uses black box data in conjunction with traditional accident reconstruction techniques such as measuring skid marks and calculating impact forces.

"Mostly it bolsters the opinion of the accident reconstructionist," Martin said.

But the potential uses of black box data aren't limited to criminal prosecutions, and many privacy advocates say they're concerned about a lack of regulation on who is able to access the information and for what purposes.

The boxes, found in almost every car with air bags, can be accessed through the same computer jacks that mechanics use to diagnose problems. Some newer cars send data back to manufacturers over wireless connections that could be vulnerable to hacking.

The debate has intensified as the National Highway Traffic Safety Administration considers feedback on a proposal to require black boxes in all new cars and light trucks sold in the United States, and to have those boxes record the same parameters -- speed, braking, throttle position and other technical data. The NHTSA wants the requirement in place by September, though many expect the deadline will be extended.

"The event data recorder data is only a taste of what's to come," cautioned Nate Cardozo, an attorney with the Electronic Frontier Foundation, which works to protect freedom in the digital world.

The right to control your car's data will become even more important, Cardozo said, as manufacturers debut more sophisticated systems that store and wirelessly transmit data about GPS searches, locations and even text messages dictated through the car's voice recognition system.

"They know where you've been over the course of the last several months or years. That is extraordinarily sensitive," Cardozo said.

In Pennsylvania and other states where there is no legislation governing access to black box data, Cardozo noted, there is no requirement that police get warrants to access the data and civil litigants may be able to obtain it by subpoena. It falls into a legal gray area, he said.

For Tom Kowalick, a Schuylkill County native who was instrumental in the push for standardizing data recorders in cars, the devices have become double-edged swords.

"Everybody wants to plug into that thing for some reason," he said. "It's time that the consumers know there are serious problems here."

Kowalick, a North Carolina community college professor, became obsessed with automobile safety after his father died in a 1982 crash on a clear morning in Schuylkill County. Kowalick never got a clear explanation from the state police and later pitched data recorders as a way to make a leap forward in traffic safety.

As chairman of the Institute of Electrical and Electronics Engineers committee on vehicle data recorders, Kowalick said he doesn't believe the devices can be trusted in situations where people's liberty is at stake.

Even in cars that have no capability to transmit data wirelessly, the black box can be accessed via the standard on-board diagnostic connector that mechanics use to read error codes from the car's computers. That leaves the data vulnerable to tampering and unreliable as evidence, he said.

"You should have the choice of determining who is going in there. Right now it's not your choice," Kowalick said.

Event data recorders were first installed in production vehicles by General Motors in the mid-1990s and their use became widespread in most cars within a decade. Today, about 97 percent of new cars sold in the United States have a data recorder, according to the Alliance of Automobile Manufacturers.

The primary purpose of the devices is to sense the vehicle's speed and deploy air bags in a crash. The data recorders constantly monitor parameters that generally include speed, braking, throttle position, whether seat belts are being used and whether the air bag system is functioning correctly.

If the air bags deploy, the device stops recording and preserves the data from the seconds before the crash. That information has proved useful in determining why crashes happen and how people are injured in them.

But because automobile manufacturers developed the technology independently and implemented it over the course of a decade or more, there is no single standard to which they must adhere.

In late 2012, the NHTSA proposed a rule that would require carmakers to put event data recorders in all vehicles. It also specifies a range of 15 required and 28 optional data elements the recorders should capture for at least five seconds before a crash.

While organizations including the Electronic Frontier Foundation agree that the black boxes serve an important function in improving safety, they also have serious concerns about shortfalls in NHTSA's proposed rule.

The proposal sets a minimum number of parameters and minimum time frame that the devices must record, but does nothing to limit how much and what kinds of information they store. NHTSA should specifically say that audio, video and location data cannot be recorded, the foundation says.

Khaliah Barnes, a lawyer for the Electronic Privacy Information Center, said the NHTSA proposal is silent on who owns the data collected by black boxes. In comments on the proposal, the center asked NHTSA to specify that the data belong to the owner or lessor of a vehicle.

"Ownership matters because if you own the data, you control what happens to it and who has access to it," Barnes said.

While privacy advocates say the data should be released to law enforcement after a court issues a search warrant, the requirement to share black box data under other circumstances, such as in a civil lawsuit or with an insurance company, is less clear.

They also envision scenarios in which data could be downloaded without a car owner's consent and sold for marketing or advertising purposes.

Dan Gage, a spokesman for the Alliance of Automobile Manufacturers, said his organization's members recognize that the data belong to car owners.

At least 14 states have passed laws that specify that black box data may only be accessed with the owner's consent, with exceptions for emergencies, criminal investigations, civil lawsuits, repairs and vehicle safety research. Four states bar insurers from refusing coverage if owners decline to share black box data.

In Pennsylvania, legislation limiting access to black box data was introduced in the state House and Senate in March 2013 and referred to the Transportation Committee in each chamber but not approved.

A bill barring unauthorized access to the data was approved by the U.S. Senate Commerce Committee in April but hasn't been considered further.

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