Bob Barr

The Nanny State is crawling under the hood of your car. The Obama Administration has recently approved a request by the National Highway Traffic Safety Administration (NHTSA) requiring auto manufacturers to install “Event Data Recorders” (EDRs) -- commonly referred to as “black boxes” -- on every new car sold in the United States starting September 2014.

U.S. Transportation Secretary Ray LaHood -- our nation’s Nanny-in-Chief” -- calls these new regulations an essential step in understanding how drivers respond in crashes; a common-sense step that will lead to advancements in safety features. “This proposal will give us the critical insight and information we need to save more lives," LaHood said in a statement released December 7th by the NHTSA. In other words, it’s for our own good.

LaHood is right about one thing. The new proposal will give Uncle Sam mountains of personal data; information that can, and will be, shared with state and local government agencies, automobile manufacturers, and insurance companies. However, serious questions remain unanswered, such as exactly what data the government is and will be gathering about U.S. drivers, who owns it, and what will be done with it.

The NHTSA estimates that 96 percent of new vehicles on the road already are equipped with EDRs (you can find out if your car contains a black box by downloading the reports here). The purpose of the regulation is to capture the remaining four percent, and to put in place new requirements about how that data finds its way into the hands of bureaucrats and investigators.

Automakers will be more than happy to comply with such a government mandate; something that will afford them the excuse of telling concerned customers, "It’s not our fault; the government made us do it."

Requirements that auto manufacturers disclose the presence of a black box (stuck somewhere in the middle of a 200-page owners manual) are only months old, but what benefit to the vehicle owners does this “disclosure” serve? In reality, nothing of any practical value. Rep. Michael Capuano (D-MA) has introduced legislation in the past that would make all data captured by a vehicle’s EDR the sole property of the vehicle’s owner, as well as provide consumers the option to disable the EDR. However, Capuano’s legislation has yet to be voted on by the GOP-controlled House.

As correctly noted by Capuano: “Many consumers are not aware that this data has the potential to be used against them in civil or criminal proceedings, or by their insurer to increase rates. No federal law exists to clarify the rights of a vehicle owner with respect to this recorded data.”

The NHTSA, on the other hand, assures us that EDRs do not record personal identifying information, or conversations held in the vehicle. It also tells us the boxes do not run continuously. However, after the regulations are implemented, the boxes will record whatever the automakers, insurance companies, and government officials want them to monitor. The vehicle owner will have no way of knowing what is being recorded, what is done with the information, or who will have access to the information.

It is, after all, a “Black Box.”

These devices easily could be employed for any number of purposes, including as a means of recording how many miles a vehicle is driven, the vehicle’s miles per gallon, and a record of its speeds (among other things). This would enable the government eventually to implement plans already being considered to charge drivers gas taxes based on miles driven, mileage, or speed.

The current proposal is simply the next “small” step down that road. LaHood already is on record supporting a mileage-based system of taxation. Providing a mandated mechanism capable of recording mileage on vehicles offers the perfect back-door opportunity for Congress or state governments to implement such a tax.

What should worry consumers perhaps even more than future taxes (or, the added cost to the sticker of new cars as manufactures pass the cost of compliance to the buyer) are the implications of such data being used against them in criminal and civil legal proceedings; a growing trend. Seemingly innocuous data such as tollbooth records collected through automatic toll tags like E-ZPass already is being used in divorce proceedings. Imagine the treasure trove of potentially incriminating evidence contained in expanded black boxes.

The implications for our civil liberties are profound. Take Massachusetts Lt. Gov. Tim Murray who was involved in a single-car wreck in November 2011. He initially denied speeding, but data pulled from his car’s black box recorder showed not only was he speeding, but he also was not wearing his seatbelt. While the Fifth Amendment affords Murray the right not to incriminate himself, the black box data taken from his own car effectively nullifies that constitutional guarantee.

It is also but a small step from where we are today, to using ERDs proactively. For example they easily could be used to limit a vehicles speed in certain areas, under certain conditions, or based on particularized police needs. Some cautious consumers already understandably avoid GM vehicles equipped with OnStar mobile communication system, which police have used to monitor conversations or disable the vehicle’s engine during high-speed pursuits.

The public has 60 days in which to comment on the NHTSA’s proposed black box rules once published in the Federal Register. The full text of the NHTSA proposal, and how to make public comments, can be found here. The public can also encourage their elected officials to introduce legislation similar to Rep. Capuano’s, which defines -- at a federal level -- greater consumer protections and privacy rights. All these steps need to be pursued vigorously.


Bob Barr

Bob Barr represented Georgia’s 7th district in the U.S. House of Representatives from 1995 -2003 and as U.S. Attorney for the Northern District of Georgia from 1986-1990.