A split panel of a Florida state appellate court has held that police need a warrant to search a vehicle’s “electronic data recorder (EDR)” or “black box” absent exigent circumstances. The case, Florida v. Worsham, 4D15-2733 (4th Dist. App. Fla., 2/29/17), appears to be only the third published decision addressing the privacy interests associated with these now-ubiquitous electronic devices, and reaches a result contrary to the previously decided cases from lower state courts in New York and California. As described by the Worsham court, EDRs (called Sensing Diagnostic Modules (SDMs) in General Motors vehicles) are devices installed on cars to record technical “crash data” concerning the vehicle and its occupants for a period of time before, during and after a crash. Under the National Highway Traffic Safety Administration minimum requirements cited by the court, the devices are mandated to record 15 specific data inputs, including braking, stability control engagement, ignition, engine rpm, steering and the severity and duration of a crash. EDRs can also record location, air bag and safety belt use, cruise control status and other data concerning the operation of the car’s systems. A Consumer Reports study mentioned in the decision finds approximately 96% of cars manufactured since 2013 are equipped with EDRs. Most of the devices are programmed either to activate during an event or to record information in a continuous loop until the car is involved in a crash.

The Worsham case involved a high-speed crash that caused the death of a passenger in the defendant-driver’s vehicle. Police impounded the car and twelve days after the crash downloaded information from the car’s EDR. Only then did police apply for a warrant, which the court denied because the search already had occurred. The driver, later arrested and charged with DUI manslaughter and vehicular homicide, moved to suppress the results of the search. The lower court held the warrantless search of the black box violated the Fourth Amendment and suppressed the evidence; the State appealed.

On appeal, the court held there is a reasonable expectation of privacy in the information retained by a car’s black box, and a warrant is required to download the device’s data in the absence of exigent circumstances. The court reasoned a car’s black box was analogous to other electronic storage devices, such as cell phones, for which courts have recognized a reasonable expectation of privacy and required a warrant to search. In addition, the court found, extracting a given car’s black box data was difficult and required expensive equipment, as well as expertise to interpret the results. For this reason, and because the recorded data contained on the devices was not exposed to the public, a warrant was required absent exigent circumstances justifying the search.

Significant to the majority’s opinion was the recently enacted federal Driver Privacy Act of 2015, which states data the EDR retains is the property of the vehicle’s owner and may not be accessed by someone other than the owner except for limited specified reasons that include consent of the owner or a court order. Seventeen states have similar laws addressing EDRs and privacy, which specify the circumstances in which the data may be downloaded. Every state allows access to the data upon consent of the owner and all (except Delaware) subject the data to court-ordered access. Other circumstances that support access to black box data in state laws include vehicle safety research, for dispatch of emergency medical personnel and for the purpose of diagnosing, servicing and repairing the vehicle. A few states further allow access “upon probable cause of an offense” and several allow the data to be obtained in a civil lawsuit. A summary of the state laws can be found here (Jan. 4, 2016).