Are tighter rules needed on recording devices in cars?
‘I think if a device is surveilling you ... that there have to be restrictions on it’
It may be 2016, but many cars in Canada have a bit of George Orwell's novel Nineteen Eighty-Four in them.
Most vehicles built since the early 2000s contain event data recorders that silently log everything, such as braking, speed, steering and whether a seatbelt is buckled.
Initially created to improve safety and car performance, the devices have become a tool for police to reconstruct crash scenes and for insurance companies to assign accident blame.
From July 1 to Dec. 31 of last year, there were five fatal vehicle collisions in the parts of Halifax policed by the RCMP. Information from event data recorders was used in two of those investigations, according to an access to information request filed by CBC News.
However, that constant data collection is raising questions. Both the Canadian Automobile Association and the Automobile Protection Association are asking for clearer rules on how that data is obtained and used by police, car manufacturers and insurance companies.
'Significant privacy concens'
"There are significant privacy concerns. First of all, your car is basically monitoring itself and to some degree monitoring your behaviour but you don't know it, unless you are told," said George Iny, the director of the Automobile Protection Association.
The association is a non-profit group dedicated to promoting consumer interests in the marketplace.
"I think if a device is surveilling you, or monitoring you, that there have to be restrictions on it," said Iny.
"I think the basic rule should be that you own your data and if someone is collecting it — even if it's with your consent — that they have to do it within certain parameters."
Iny says many car manufacturers include a notice telling consumers that the event data recorder is in their car, but the notice is usually buried in the back of the owner's manual.
CBC News requested interviews with GMC, Ford, Mazda and Honda to discuss the devices, but only Honda responded. The company wouldn't provide someone for an interview, but did supply information about its event data recorders.
Sixteen auto manufacturers producing 50 different brands of cars all contain versions of the event data recorder, says Const. Shawn Flynn of the Halifax Regional Police. Each have slight variations on what's being recorded.
In the beginning, the recorders — also known as "air bag control modules" — simply logged speed and when the brake lights turned on. If the car was slowing down unusually fast, that information would help tell the airbag to deploy, says Flynn.
"It was rather primitive in the beginning. Now, we've evolved to where the sampling rate has increased and that diagnostic information available to the vehicle is incredible," he said.
The data in the recorders is accessed through special cables that connect to a port beneath the steering wheel. A laptop with specialized software is used to copy the data.
Nothing that would identify driver, say police
Sgt. Chris Romanchych is in charge of the RCMP's collision reconstruction program in Nova Scotia. He said he knows some people are concerned about privacy when it comes to event data recorders.
"I think it comes from more of, 'Are the automobile agencies and are the police spying on us by using this data?'
"I think it's important to know there is nothing in this data that would identify what's going on in the cab with the person or what person is sitting in the driver's seat."
Data constantly erased
Romanchych said the machines only record the movements of the car, not what is being said in the vehicle or what people are doing, unless it directly relates to the movement of the vehicle or the deployment of the air bags.
Most of the data in the recorders isn't kept for long. Flynn said a person's day-to-day driving history is constantly erased and rerecorded. It's only when the air bags are deployed or almost deployed that the data recorder holds onto a log.
"It's common, for example, with General Motors vehicles [that] a non-deployment event will occur and that will lock that information in this module for 250 ignition cycles," said Flynn.
Data cleared driver in a pedestrian collision
Both Halifax Regional Police and RCMP only access event data recorders in the most serious car crashes, usually in cases that involve fatalities.
Flynn has been called to testify in court twice using recorder data.
"In [one] case, it cleared the driver of a pedestrian collision."
Viewed as infallible?
Flynn says both the evidence at the scene and the information from the recorder are used together to get a better picture of what led to a collision. He says it's an extra tool in an investigation, not the be-all and end-all.
"It can be very helpful," said Romanchych. "The accuracy is quite good and there have been some tests concerning that. It's another piece of the puzzle that we look at when we're trying to piece some of these bad collisions together."
George Iny of the Automobile Protection Association doesn't see it that way. He believes the recorders' data is too often viewed as infallible.
"The data on these recorders are accepted as the absolute, rigorous truth. If one of these machines were making an error it probably wouldn't be spotted. The data would be considered correct regardless, and may be considered overriding, even what the external validations that you see."
He said the recorders' initial purpose has been buried. He said the devices are too often being used by police and insurance companies to find out who was at fault in a crash, rather than being used for research to make vehicles safer.
Warrant versus no warrant
There are also questions about whether police require a warrant to access someone's vehicle data.
"The question is do we need a warrant — to be quite honest, right now in Canada there's case law for both perspectives," said Flynn.
He adds that the information recorded on a device reflects what happens in public on a road, so the expectation of privacy is different.
"Somebody standing on the sidewalk is going to see the exact same information that's on that module," said Flynn.
Wayne MacKay is a law professor at Dalhousie University's Schulich School of Law. He said while it's true that a crash happens in plain view, that doesn't mean the recorder's information should be free for the taking.
He believes police should have to get a search warrant to access the recorder's data.
"This is technical information which will likely be given a lot more weight by the court," said MacKay.
He said even having the devices in cars can be considered a violation of privacy, since many people haven't given consent for the device to be present and don't know it's there.
Clearer rules could be on the way
The Canadian Automobile Association advocates on issues that are a concern to its members and the motoring public.
The CAA says there is lobbying around this issue happening at the federal level.
"The Privacy Commission of Canada has determined that this is an important issue to tackle and they are approaching it with motorists organizations like ours, with manufacturers and with possible legislation," said Gary Howard, spokesman for CAA Atlantic.
MacKay says as more of what we do is recorded, our laws have been slow to catch up to protect our privacy. Iny agrees the technology is moving very swiftly.
"There are plenty of vehicles with onboard systems that can communicate in real time, all the time with the car maker. They know where you are and they'll know how you're driving. That's much more invasive."
He says cars are turning into a "permanent antenna" that can be used for "collecting, transmitting and receiving data about itself all the time."