FL4: REP in a vehicle’s black box, and a SW required to access it

There is a reasonable expectation of privacy in information held in a vehicle’s black box, and a search warrant is required to access it. State v. Worsham, 2017 Fla. App. LEXIS 4162 (Fla. 4th DCA March 29, 2017):

Most of these devices are programmed either to activate during an event or record information in a continuous loop, writing over data again and again until the vehicle is in a collision. Michelle V. Rafter, Decoding What’s in Your Car’s Black Box, Edmunds, https://www.edmunds.com/cartechnology/car-black-box-recorders-capture-crash-data.html (updated July 22, 2014). However, if triggered, the device can record multiple events. 49 C.F.R. § 563.9.

The National Highway Traffic Safety Administration has standardized the minimum requirements for electronic data recorders, mandating that the devices record 15 specific data inputs, including braking, stability control engagement, ignition cycle, engine rpm, steering, and the severity and duration of a crash. 49 C.F.R. § 563.7. Along with these required data inputs, the devices may record additional information like location or cruise control status and some devices can even perform diagnostic examinations to determine whether the vehicle’s systems are operating properly. See Decoding ‘The Black Box’ with Expert Advice, American Bar Assoc. GP Solo Law Trends & News, http://www.americanbar.org/content/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/decodingblackbox.html (May 2005); Vehicular Data Recorder Download, Collection, and Analysis, Collision Research and Analysis Inc.,

The information contained in a vehicle’s black box is fairly difficult to obtain. The data retrieval kit necessary to extract the information is expensive and each manufacturer’s data recorder requires a different type of cable to connect with the diagnostic port. Rafter, supra. The downloaded data must then be interpreted by a specialist with extensive training. Id.; see also Melissa Massheder Torres, The Automotive Black Box, 55 Rev. Der. P.R. 191, 192 (2015).

The record reflects that the black box in Worsham’s vehicle recorded speed and braking data, the car’s change in velocity, steering input, yaw rate, angular rate, safety belt status, system voltage, and airbag warning lamp information.

Extracting and interpreting the information from a car’s black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.

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