As avid motorcyclists, attorneys Frank Lamothe and Richard Martin have first-hand experience that gives them an edge in trying motorcycle accident cases. At Lamothe Law Firm, we aggressively represent motorcyclists who are injured by inattentive motorists.
Frank Lamothe recently wrote an article for a motorcycle magazine about black boxes (event data recorders) sometimes installed on motorcycles, and the legislation and privacy issues surrounding the use of this data. Here’s the article:
A Trojan Horse Is on the Way
by Frank E. Lamothe, III
Trojan horses are beginning to arrive in small packages. Some motorcycles are now beginning to come with EDR’s (event data recorders) which are black boxes which can record data involving movement, speed, lean angle braking, engine speed (rpms), acceleration and deceleration.
EDRs typically only record a few seconds’ worth of data before, during and after a crash. EDRs have been widely used in automobiles for years, but only recently have been installed on some production motorcycles.
EDRs were first used on cars in the 1970s to record data related to airbag deployment -purely in an effort to improve safety, measure basic things like vehicle speed, throttle position, brake and seatbelt status, the severity of the crash (as measured by a sudden change in velocity) and airbag deployment. In the increasing digital expansion since airbags and systems like stability control and automotive technology in general have evolved, EDR use and the amount of data they record has also expanded.
To date, EDR installation in automobiles is voluntary and the data is still primarily used for improving safety, but manufacturers and the legal community have discovered other uses for EDRs. A number of states have passed laws requiring manufacturers to notify buyers that an EDR is present in the vehicle and specify that EDR data cannot be used without the vehicle owner’s consent.
In Louisiana, legislation has been filed but at this point has not been passed. It provides for “the ownership, disclosure, dissemination, retrieval and retention of data located on recording devices in motor vehicles; requires a manufacturer of a new motor vehicle that is sold or leased in this state and that is equipped with a recording device to disclose that fact in the owner’s manual of the vehicle”. HB 787.
EDR data has been accessed to prove or disprove liability in crashes and warranty claims, and the courts have used it to both convict and clear drivers in accidents. Safety advocates, law enforcement, the government and insurers all support the deployment of EDRs.
Privacy advocates are concerned about how long it will be before data recording times are increased to several minutes, hours or even always present, and law enforcement is allowed to access the data to write speeding tickets or make arrests after the fact, and insurers will be constantly monitoring our driving and riding habits. Progressive already has a voluntary program in place.
Legislation known as the Driver Privacy Act (S. 1925) and the Black Box Privacy Protection Act (H.R. 2414) are in Congressional committees but neither has passed. If passed, they will provide privacy safeguards that will make it unlawful for EDR data to be accessed without the consent of the vehicle owner or a court order. Both bills include motorcycles.
The key question is — who owns the data and has a right to control its use? Will I be able to disable the EDR if I don’t want this data recorded?
Some motorcycle manufacturers seem to care about our privacy. Honda’s policy is that “any data recorded and retained by an EDR during a crash belongs to the vehicle owner, and access to such data should only be obtained with the consent of the vehicle owner or through appropriate legal means.” Should we be concerned?
EDR supporters argue that if you’re not breaking the law or when an accident or failure occurs, you have nothing to fear from the EDR which is just telling the truth – but who wants big brother watching at all times? How long will it be before insurers make motorcycle EDRs a requirement for coverage or give a discount where EDRs are used with access required by your insurance policy like Progressive does with cars?
What about being concerned about a device that can’t be turned off and can be accessed at all times by insurance companies or law enforcement? All this in a world that is more and more frequently taking liberties with our privacy.
As trial lawyers, we have experts who can analyze EDR data in reconstructing accidents and making liability determinations. Welcome to a brave new world.