July 16, 2005

A little before 11 one evening last november, 76-year-old Jean Eames of Glendora was sitting up in bed watching television when a Chevrolet Tahoe abruptly joined her. The Tahoe, which had skewed off a major road and into the backyard of Eames' cul-de-sac home, slammed through a fence, uprooted a tree and took down a concrete-anchored play set before it rammed through her bedroom wall.

Instead of going peacefully to sleep when her program ended, Eames went to the emergency room with a broken collarbone and several broken ribs. The allegedly intoxicated driver, Mary Patricia Rodriguez, also of Glendora, was driving 52 mph five seconds before she hit the fence, and 62 mph just one second beforehand. There was no posted speed limit in Eames' backyard, but the one on the road Rodriguez left behind was 35 mph.

The Glendora police know exactly how fast she was driving. They know it even though no one saw Rodriguez hit the fence or the house. Nevertheless, there was a witness: the Chevy Tahoe.

Sgt. Timothy Staab of the Glendora police, using a laptop computer with software from a Santa Barbara company called Vetronix, downloaded the speeds and other crash-related information from the Tahoe's event data recorder—a device informally known as a "black box" because it's similar to the recording equipment that has long been standard in airplanes, trains and some trucks, although the car version doesn't tape voices. Like all General Motors vehicles made in the last few years, and some as far back as the mid-1990s, the Tahoe's data recorder deploys the air bags and captures basic information,including speed, engine revolutions per minute, whether the seat belts were engaged and the status of braking, during the five seconds just before an accident, the millisecond of the crash itself and a second afterward. In Tahoes, the device is housed in a 4-by-4-inch silver metal box under the carpet beneath the driver's seat.

Recording devices like the one in the Tahoe are in many vehicles now. Today a device that has been around as long as cars have had air bags has evolved into a more sophisticated record-keeping version of its earlier self, and for years agencies of our federal government have been encouraging car makers to give investigators the ability to retrieve data from the recorders. The push to make this information readily available—and to increase public awareness of these devices—accelerated in 2003 after the Santa Monica Farmers' Market incident, in which an 86-year-old driver killed 10 people and injured many others. (Safety officials regretted not having a readable data recorder in the driver's 1992 Buick to help with accident analysis. If it had been the 1994 model, they could have extracted information.) Their motive is golden: They want to collect accident data that will lead to safer cars, and prevent the injuries and 43,000 deaths that occur as a result of 6 million tow-away accidents in the U.S. each year.

But most Americans have no idea that cars can tell tales. If we had known, we might be driving better—the way a teenager takes more care when Mom rides along. Few of us are aware, either, that law enforcement, the insurance industry and a whole galaxy of companies that buy and sell information are vitally interested in what the event data recorders know. Make no mistake: Expanded use of these little boxes is going to have a big impact.

More than 40 million cars, minivans, pickups and sport utility vehicles now have data recorders that can be downloaded. If you own a vehicle built in the last few years, you can assume it has an event data recorder, and that very soon, most law enforcement agencies will be able to read what's on it following a crash.

Originally car makers "designed these EDRs to help our engineers adjust and test safety features on our cars, especially the air bags," says Ford spokesman Daniel Jarvis. Then a couple of notable liability lawsuits in the 1990s brought home to manufacturers the advantage of being able to say, "Yes, indeed, the air bags in our vehicle did deploy and we can prove it: Look at this precise measurement." Along the way, some car makers began collecting other bits of information, including speed, seat belt status (although even today no unit can tell if you're using one correctly, just if it is "clicked") and whether the brakes were applied during an accident.

The evolution of the devices is just one small part of the picture, though. For the past few years, police and accident reconstruction experts increasingly have been using the recorded data for purposes other than safety research. Trained experts already can extract information from GM, Isuzu and Ford vehicles. Other major car companies may follow suit, giving their proprietary codes to Vetronix engineers, who will write software that will allow the devices to be read by law enforcement and other interested parties. (A list of vehicles with currently downloadable event data recorders is available at http://vetronix.com/diagnostics/cdr/vehicle_list.html .)

At the moment, car makers have trusted Vetronix, whose primary business is making diagnostic tools, as their sole translator. Vetronix personnel note that the $2,500 kits that allow police and accident reconstruction experts to download data is a tiny sliver of their business. Still, Vetronix is admirably situated for the coming day when all cars have downloadable event data recorders, and every highway patrol, police and sheriff's unit needs the software.

The devices vary in the amount of data they compile, even among cars made by the same manufacturer. The National Highway Traffic Safety Administration says it intends to require car manufacturers to standardize their devices, so that by 2008 every device will record eight seconds of the same list of data in the same format. The agency pledges to abide by the Privacy Act requirements by stripping any recorder-generated research data of identity markers such as vehicle identification numbers, and to use it only to make cars and roadways safer.

While that may reassure those concerned about keeping the federal government out of their lives, already there are private sector plans to collect a huge pool of accident data from the recorders with the aim of finding more cost-effective ways to service insurance claims and simplify litigation. That sounds good, too, on the face of it. But emerging technologies have a way of beginning as one thing and then oozing Blob-like into something else.

Swipe-it savings cards at grocery stores, for example, were supposed to speed check-out and let the stores keep their inventory well-stocked; no more running out of bananas. But that information about what we buy has proved too tempting, and it's often sold to vendors who target us with everything from dog food to mortgage offers. Law enforcement agencies have even subpoenaed the data collected by the cards for use in prosecutions. We can expect event data recorders to come similarly equipped to change our lives, says John Soma, a law professor at the University of Denver who heads the Privacy Foundation, a nonprofit group: "You can't really overestimate the threat [the devices have] to personal privacy."

The OnStar system, currently available in more than half of GM's cars, and the similar ATX technology used in Mercedes-Benzes, BMWs and Jaguars, use voice-activated wireless technology to communicate with a listening point. The event data recorder on the Tahoe, however, was not able to call the police or tell them the SUV's location. And no event data recorder today can hear or see what is happening inside a vehicle, nor do any of them have global positioning systems. But privacy advocates anticipate that the devices will grow up to be like OnStar, possibly before the end of this decade. These will have global positioning systems and be able to beam wireless signals to emergency responders. (Yet to be worked out: who will pick up the tab for the cellular technology.) Japanese cars already have such event data recorders.

Much of what U.S. safety researchers now know about protecting people in cars comes either through driving test vehicles into walls or into each other at low speeds, or from the more than 4,000 crashes that NHTSA studies in depth each year. "Trouble is, in the real world, you generally don't die from crashing head-on into a brick wall," says Dr. Ricardo Martinez, an emergency physician and the head of the NHTSA during the Clinton administration.

Martinez now is on the board of Safety Intelligence Systems in New York, a technology and information company. He and many others who work in the automotive and traffic safety industries believe that today's event data recorders, and the real-world collision data researchers plan to harvest from them, are going to launch us toward a fast-moving automotive revolution: smart cars that will use wireless communication to flash and receive messages from other vehicles about traffic conditions. Cars that will override the mistakes of their CD-grabbing, cellphone-talking drivers and avoid accidents. Cars that will communicate their data readings from a crash, such as the car's speed and the G-force at impact, and enable emergency responders to calculate whether they should dispatch an ambulance, a medevac helicopter or a state trooper. Soon "we're going to look back on this decade and realize that, in 2005, we were in the dark ages" of knowing how to prevent accidents and save lives, Martinez says.

Safety experts say that once Americans see how lives are saved, they will be less concerned about privacy issues. Consumers will be so glad to have event data recorders in their vehicles that they will not just tolerate them, but request them.

But wait a minute: is anybody actively making it clear to drivers that they might, in their next accident, become unwitting warriors in the road safety revolution, or that their car's data recorder might someday testify for or against them in court? Asked whether the average driver knows a data recorder could be riding shotgun, Joan Claybrook, head of the consumer watchdog group Public Citizen and former NHTSA chief, says, "Oh, I don't think so."

A consumer who objects to Big Brother's gaze can opt out of OnStar or a similar system. But the event data recorders in today's vehicles can't be switched off or removed. While a few boxes do their recording within the computer that controls the power train, most often they are a synapse of the same electronic brain that triggers the car's air bags and tightens seat belts during an accident. Tampering with that system would render the air bags and seat belts—which every state requires—inoperable. What will happen if every car has a global positioning device in its data recorder, and its movements therefore can be tracked? Will consumer pressure force car makers to develop devices that can be switched off? Claybrook thinks not: "People say, 'I don't want this in my car,' but would change their minds if they were in a crash and wanted to pursue what happened."

With the exception of GM and Ford, which have been remarkably public-spirited in allowing their proprietary data to be decoded, car manufacturers have been shy about discussing these devices (though some owner's manuals do). When drivers find out, not all of them are thrilled. One North Dakota state senator commented, "When I bought my car, I didn't realize that I was also buying a highway patrolman to sit in the back seat."

Experts in law, safety and police work believe the weight of legal precedence gives law enforcement officers the right to download black box data while they are investigating a smashup. For decades, specially trained traffic officers have examined accident scenes, particularly where there are injuries or fatalities, and then impounded vehicles to measure every dent and filament and determine what happened. So the ability to download data is just one more tool on the belt.

Spokespeople for the federal government, car makers and the insurance industry claim that recorded data belong to the car owner, but parroting that line doesn't make it so, especially with the auto insurance industry salivating over using data in settling claims—as it already is quietly doing. Some companies are frank about it. "We use [recorded data] when it can help us assess the degree of fault," says State Farm national spokesman Richard Luedke. Other companies avoid the topic. Officials of one large auto insurer denied that it used the data at the same time that accident reconstruction experts, some of whom were moonlighting law enforcement officers, told stories about insurance fraud cases they had cracked for the very same company using the downloaded data.

Of course, the insurance industry is interested in a tool that allows the insurer to know—immediately and objectively—such things as the timing of hits from multiple cars and how hard the driver braked during an accident. The March 2004 issue of Claims, an insurance industry publication, said that "because the data now can be obtained economically, EDR information is not just being relegated to serious accidents, but is being used to evaluate minor impact and non-casualty claims."

The rapid advances in event data recorders and related automotive technologies have set privacy and ownership issues bouncing around like so much Flubber. Last July, California became the first state to pass a law addressing this new legal gray area. Drafted by Republican Assemblyman Tim Leslie of Tahoe City, it states that, beginning this year, all car makers have to disclose the existence of data recorders in owner's manuals. The law also says that the recorded data belong to the car owner and, unless a court orders otherwise, can only be downloaded with the owner's permission or if being used for research. North Dakota, Arkansas, Nevada and Texas quickly followed with similar laws. Eleven more states, including Alaska, Connecticut, Massachusetts, Montana, New Hampshire, New Jersey, New York, Pennsylvania, Tennessee, Virginia and West Virginia, have data recorder legislation pending.

But privacy rights can be eroded in subtle ways. "Saying the car owner owns the EDR information is meaningless if your insurance company won't cover you unless you sign a form giving them permission to look at it," warns Christopher Hoofnagle, head of the West Coast office of the Electronic Privacy Information Center. Most auto insurance policies contain boilerplate language stating that the policyholder will cooperate in the investigation of claims. That's "permission" from the vehicle owner. Even if new laws insist that insurers get a separate, signed release before extracting data, that too is likely to evolve into common practice. We already sign releases allowing insurers to review our medical records.

Hoofnagle says his advocacy group would like consumers to have the ability to turn off the devices and to opt out of any data-collection schemes. The group also suggests that laws be passed requiring the FBI and other legal entities to establish probable cause that a crime has been committed before being allowed to use any sort of global positioning or communications system in our cars. Otherwise, Hoofnagle says, the ability to track anyone riding in a car is going to become "a real honey pot full of possibilities."

During a recent preliminary hearing in the wayward Tahoe case, Glendora police used information legally extracted from the Tahoe's data recorder against Rodriguez. That's unusual. In California and the growing number of states where recorded data is used at trial, including Florida, Illinois, Massachusetts, New York and Arizona, the case has generally involved a dramatic crash with one or more fatalities. Some convicted drivers were drunk or doing more than 100 mph, or both. The use of recorded data in the Tahoe incident, which had relatively minor consequences, suggests that recorder-generated evidence may play an increasing role in routine or civil cases.

Data can convict the guilty, but they also can free a driver charged or just suspected of causing an accident. That's already happening every day all over the country, says William R. "Rusty" Haight, a prominent traffic accident reconstruction specialist who has testified as an expert witness in many states. A former police officer, he also has taught accident reconstruction techniques for 16 years. "The cases when the police decide not to prosecute, well, the citizen may never realize how he got off," Haight says. "If you drive like a reasonable person and get into an accident, this device could save your bacon. But if you're driving like a knucklehead, it will show that, too." He agrees with Public Citizen's Claybrook, who says that we'd all drive more carefully if we knew we couldn't lie after a crash.

Researcher Jessica Gelt contributed to this story.