EDITED BY JILL SCHACHNER CHANEN / JILL.CHANEN@AMERICANBAR.ORG
The Drive for Data
ACalifornia appellate court’s reversal of a drunk- driving manslaughter conviction is one of sev- eral cases pitting new technologies against long-held privacy principles.
In May 2006, driver George Xinos struck and killed
a teenager crossing a San Jose street. While Xinos’ car
was in storage, police on orders from the district attorney’s office downloaded information from the car’s
“black box” that included data showing the defendant
had been speeding.
During Xinos’ 2009 trial, the
court found police did not need
a warrant because Xinos lacked
a reasonable expectation of privacy for black box data. But the
appellate court found Xinos had
such an expectation and the
Fourth Amendment applied.
Therefore the police needed
probable cause, which the court
Event data recorders were
designed to monitor the sensors
that help regulate air bag deployment in cars, but they have
become increasingly sophisticated. They can record speed
and braking, seat belt use and
changes in front-to-back and
side-to-side velocity. Vision
technology can capture traffic
signals and road signs. Black
boxes also can help drivers
prove, for example, that electrical failures or road conditions caused an accident.
Approximately 85 percent of new cars have black
boxes, yet few drivers know they exist. California is one
of about a dozen states that require their disclosure.
Black box data has been used with increasing frequency by prosecutors and plaintiffs lawyers to reconcile witness accounts and provide physical evidence.
But it’s taking its toll on privacy rights, some claim.
In 2004 and 2005, separate New York courts ruled
that downloading black box data without a warrant was
allowed. One court ruled such data was not analogous
to a container search. The other based its decision in
part on eyewitness testimony confirming the defendant’s speed.
People v. Xinos also may do little for privacy rights.
The case is “narrower than it might at first seem,” says
law professor David Sklansky of the University of Cali-
fornia at Berkeley. But it is one of a number of surfacing
cases in which emerging technologies force courts to re-
evaluate privacy principles. “These technologies put
pressure on an essential feature of the Fourth Amend-
ment—that privacy is all or noth-
Historically an expectation of
privacy revolved around whether
someone was doing something in
public versus in private, Sklansky
explains. “But it’s becoming hard-
er and harder to think about pri-
vacy in that way. Technology now
provides more detailed records of
things that are out in public.
“How fine-grained and detailed
the information is determines
how it should be thought of in
terms of the Fourth Amendment,”
According to the Xinos appeal,
information from a car’s data recorder is distinguishable from the
technology law enforcement may
use, such as tracking devices, to
capture information knowingly
exposed to the public.
“The court’s recognition of the
ability of event data technology
to provide precise information means there’s a higher
expectation of privacy,” says Susan Freiwald, a cyberlaw
and information privacy law professor at the University
of San Francisco School of Law. Freiwald expects the
Xinos reasoning to be persuasive to courts around the
With a “thoughtful and detailed” decision like Xinos,
Freiwald says, “it seems harder for a court, though not
impossible, to go back to the more simplistic reasoning
of saying that the data recorder is just like a witness on
—Leslie A. Gordon