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Client Alert

Warrant Needed for “Black Box” Data in Florida

May 17, 2017

Authors: Sean M. McDonough, Brian Del Gatto, Jordan Matheny

In a case of first impression in Florida, a split appellate court in State of Florida v. Charles Wiley Worsham Jr., No. 4D15-2733 (Fla. Dist. Ct. App. Mar. 29, 2017), held that a warrant was necessary before law enforcement could download information from a vehicle’s event data recorder (aka black box). In so ruling, the majority reasoned there was a reasonable expectation of privacy in the information retained by an event data recorder, and downloading that information without a warrant violated the Fourth Amendment.

Worsham, who was charged with DUI manslaughter and vehicular homicide, moved to suppress evidence police obtained from the vehicle’s black box. The motion was granted, and the majority upheld the suppression of data from the black box, focusing on the evolving nature of technology and privacy. It analogized the black box information to that of other electronic storage devices for which courts have recognized a reasonable expectation of privacy, such as a cell phone. See Riley v. California, 134 S. Ct. 2473 (2014).

The majority rejected the argument that the defendant had no reasonable expectation of privacy in the data because it was recorded while the defendant was driving on public roadways. Instead, it held that the data was difficult to extract and interpret, and not all of the recorded information was exposed to the public. Although the event data recorder did not store the same quantity of information as a cell phone, it documented more than what was voluntarily conveyed to the public. In reaching its decision, the majority relied on two United States Supreme Court opinions. The first was the Court’s opinion in Katz v. United States, 389 U.S. 347 (1967), which stated citizens have a guaranteed right to be free from unreasonable searches and seizures where information is sought to be preserved as private, even when that information may be accessible to the public. The second was Justice Alito’s concurring opinion in United States v. Jones, 565 U.S. 400, 430-431 (2012), where he found that reasonable expectations of privacy can be violated by the “long-term monitoring” of a vehicle’s movement by a tracking device.

The majority also noted the Driver Privacy Act of 2015, which states “any data retained by an event data recorder is the property of the owner of the motor vehicle in which the event data recorder is installed.” 49 CFR § 563.5. The Act explains that the event data recorder may not be accessed by a person other than an owner and lays the groundwork for a right to privacy concerning the information contained in the event data recorder.

In conclusion, the majority held that “the constant, unrelenting black box surveillance of driving conditions could contribute to a reasonable expectation of privacy in the recorded data.” In view of that and the fact that “the data is difficult to access and not all of the recorded information is exposed to the public,” the court found that “Worsham had a reasonable expectation of privacy … and ... that a warrant was required before police could search the black box.”

The dissenting opinion disputed the notion that black box data had privacy concerns similar to cell phone data, reasoning, “the data was not personal to [the driver], was not password protected by [the driver], and was not being collected and maintained solely for the benefit of [the driver].” The dissent also noted that event data recorders are installed for the benefit of the National Highway Traffic Safety Administration and extraction of such information does not invade a driver’s reasonable expectation of privacy.

Takeaway
This case may hamper law enforcement’s investigation, but likely does not stop law enforcement from getting access to a vehicle’s event data recorder. Judges probably will grant warrants routinely to allow law enforcement to retrieve this important data. In a civil context, the parties may have to wait for law enforcement to release the vehicles.

In the meantime, Worsham should not apply to the civil context. Defense attorneys still need to send preservation of evidence letters to claimants and vehicle owners, and then seek their permission to get access to the event data recorder. If the owner denies access, Florida law allows for discovery via a pure bill of discovery before the claimant files suit.

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