SC Lawyer, Sept. 2004, #2. Big brother or big savior? Here comes the black box.

• Author: By Mark Joye

South Carolina Lawyer

2004.

SC Lawyer, Sept. 2004, #2.

Big brother or big savior? Here comes the black box

South Carolina LawyerSeptember 2004Big brother or big savior? Here comes the black boxBy Mark JoyeThese days, when there is a plane crash, all attention is given to locating the "black box" to find out what happened and hopefully to discover what went wrong. In the aftermath of the September 11, 2001, plane hijackings, we all wanted to hear the cockpit voice recorder and see the data from digital flight recorders. Any time something bad happens, such as a crash, we want to discover the "hows" and "whys" so that the event might be explained and hopefully avoided in the future. With the advent of the event data recorder (EDR), commonly called the "black box," we increasingly turn to them for some of these answers.

An EDR is a device some manufacturers install in a motor vehicle to record vehicle and occupant-based information for a brief period of time (seconds, not minutes) before, during and after a crash. Some systems collect only vehicle acceleration/deceleration data (speed before and at impact); others collect the same information in addition to other data, such as driver input (braking, steering, seatbelt use) and vehicle systems status (anti-lock brakes, air bag deployment, traction control). This information is useful in investigating the causes of a crash, the injury mechanism and for better defining safety problems. Ideally, the information can be used to improve motor vehicle safety.

The technology of recording and saving data from an "event" such as an automobile collision can be traced back to the 1970s. Early efforts to equip vehicles with EDRs began in 1974. The National Highway Traffic Safety Administration (NHTSA) installed analog disc recorders in approximately 1,000 vehicles to process and record crash parameters in fairly low speed crashes. Starting in the mid- 1980s, a new technology was introduced into vehicle systems that greatly aided the expansion and use of black boxes. The technology, electrically erasable programable read-only memory (EEPROM) is non-volatile, which means that after data is written to it, the data is retained even when the power source is disconnected. This technology was first used in electronic odometers that saved the vehicle's cumulative mileage, even if the battery was disconnected. William Rosenbluth, Investigation & Interpretation of Black Box Data in Automobiles: A Guide to the Concepts and Formats of Computer Data in Vehicle Safety and Control Systems (Society of Auto. Engineers, 2001).

As vehicles became more dependent on computers to run various systems, manufacturers built data recorders into them. Initially, the recorders were included for repairmen to diagnose problems with the engine. Electronic fuel injection computers gathered data to measure and manage engine fuel consumption. Anti-lock brakes, another major safety feature on cars, featured a computer that measured individual wheel speeds and reduced brake fluid pressure to the wheel to prevent it from locking up, thereby giving increased directional control. Other black box computers receiving and storing data in vehicles included ones for traction control, cruise control, power train, seat belt tensioners and suspension control.

The 1990s were the real start of the use of black boxes in vehicles. When air bags began to make their way into vehicles, those vehicles needed a computer to measure the acceleration forces for a vehicle involved in a crash and electrically deploy the air bags.

General Motors (GM) began installing black boxes in some of its air bag equipped vehicles in 1990. In 1994, the boxes were modified to sense and save the maximum change in velocity in a "near-deployment" (air bag) event; the change in velocity in frontal collisions in which air bags did deploy; the time between the moment of vehicle impact and the moment of maximum change in velocity; the state of the driver seatbelt switch (whether the belt was fastened); and the time between an event in which air bags nearly deployed and a later event that caused them to deploy (if within five seconds). In 1999, GM began installing the new generation black boxes in all of its vehicles. This newer black box captures pre-crash information including vehicle speed, brake application, engine RPM and percent throttle for five seconds prior to the crash. www.nrd.nhtsa.dot.gov/edr-site/uploads/Auto_ Black_Box_Data_Recovery_Systems_by TARO.pdf

Ford Motor Company started installing a crash recorder in one model in May of 1997. However, it was not until 2001 that Ford began installing these recorders in earnest.

Tractor-trailers and other commercial vehicles have been utilizing black boxes for almost 20 years. Information that can be stored and downloaded from these vehicles include speed history, excessive RPM, heavy breaking, speed exceptions, hours driven, movement summary, fast accelerations, accident reports, driver identification, idle time, fuel consumption and seating driving time limits. Many of these commercial vehicles are equipped with global positioning satellite systems in which much of the above information can be transferred immediately via satellite to a "home" base. Menig, P. & Coverdill, C., 1999, "Transportation Recorders on Commercial Vehicles," International Symposium on Transportation Recorders, 3-5 May, Arlington, VA.

How is this information accessed or downloaded? Whether the information comes from just the air bag module or a network of computers throughout the vehicle, the information is recorded and stored in a series of codes (diagnostic trouble codes or DTCs). A scanner/computer is plugged into a vehicle data port which then interprets and prints out the codes.

How is this information created in a collision, and how is it saved? In a frontal collision, the vehicle starts to deform and crush. Components in the crush zone start to displace from the original positions. Wiring harnesses to the displacing components start stretching. As displacement continues, wires stretch, connectors pop off and components are crushed. As connectors pop off and components are crushed, associated electronic control units detect operating malfunctions and generate diagnostic trouble codes. These trouble codes are event-triggered, and the component damage caused by impact damage is the triggering event. In the same actions that save the trouble codes, selected freeze frames are saved. Depending on impact severity, vehicle power may be lost. Even if power is lost, EEPROM or "flash memory" retains the saved trouble codes and associated freeze frame data. After the crash event, EEPROM/flash memory can be interrogated using scanners to retrieve saved DTCs and associated freeze frame data. William Rosenbluth, Investigation & Interpretation of Black Box Data in Automobiles: A Guide to the Concepts and Formals of Computer Data in Vehicle Safety and Control Systems (Soc'y of Auto. Eng'rs & Am. Soc'y of Testing & Materials 2001).

Currently, most of the manufacturers of these black boxes and the vehicle manufacturers consider the capability to read the information as "proprietary." As a result, the capability to download data from some devices is only realistically available to the manufacturer. GM has the TECH ONE tool and Ford has an engineering tool not available to the public. GM has said that a "self read" feature may be incorporated in vehicles which would allow anyone access to the data. Ford has also talked about a common "reading" tool for the future.

There is one scanner that is available to the public to download and interpret some of the data from GM vehicles. In 2000, Vetronics Corporation began selling its Crash Data Retrieval Tool for about $2,500. www.vetronix.com/diagnostics/cdr/faqs.html. This price does not include the cost of the required laptop computer nor the training it offers at its two to three day seminars in California. The information downloaded from this unit can print out a graph showing five seconds of pre-crash data, including brake switch status, vehicle speed, percent throttle and engine RPM. Vetronics Corporation may have reached an agreement with Ford to use its air bag module soon.

Why is all of this information important? On a broader front, this detailed information can be quickly and efficiently placed into an accident database for people to study the effects of vehicle crashes and how the harm from them can be lessened. For the individual crash scenario, a black box has the potential to provide much more information about a vehicle crash and the systems within a vehicle than an eyewitness to the crash itself. Conflicting eyewitness testimony may be reconciled with data from the black box. Of course, when there are no eyewitnesses to a crash, the black box may be the only information besides the vehicle itself in explaining the hows and whys of the crash. For example, if there are no skid marks on the road prior to a crash and no witnesses, how do you know the brakes were used if the car was equipped with anti-lock (anti-skid) brakes? If there are not enough physical markings on a seatbelt to indicate whether a "load" was placed on the belt (which indicates belt use) during a crash when the air bag deployed, seatbelt usage information from a black box can be quite helpful.

The effects of black boxes have already made their way to courtrooms across the country. In Bachman v. General Motors, Corp., 332 Ill. App. 3d 760, 776 N.E.2d 262 (2002), the plaintiff alleged she was driving her 1996 Chevrolet Cavalier when the air bag inadvertently deployed and knocked her hands off of the steering wheel, causing a collision. GM introduced the data recorded from a black box to show that the air bag did not malfunction. The jury returned a verdict for the defense. On appeal, the Illinois appellate court upheld the admissibility of the black box data under the Frye standard.

In Canada, information downloaded from a black box helped convict a Canadian citizen who slammed into another car he accused of running a red light. With no witnesses to the deadly collision, the black box information was admitted into evidence and showed the defendant was driving three times the speed limit and that he never hit the brakes. Car's "black box" helps convict Quebec man, Toronto Star, Apr. 15, 2004.

In Massachusetts, a young woman lost control of her 2002 GMC Yukon as she drove on a two lane highway and slammed into a tree, killing the passenger. Although the driver claimed she was driving under the speed limit, police downloaded the black box information in the car and charged the driver with negligent vehicular homicide for traveling well above the speed limit. Black Box: for cars a surprise, Washington Times, July 2, 2003.

Ford Motor Company agreed to pay $1.5 million to the family of a woman who was killed in a low speed collision after data from the black box of her Ford Ranger pickup truck indicated that the vehicle's air bags may have deployed too late. Instead of deploying within 50 to 60 milliseconds after frontal impact with a light pole at 18 mph, the black box indicated airbag deployment at 118 milliseconds - twice as long to deploy. Black Box: Data Key to $1.5M Ford Settlement, Lawyers Weekly USA, Mar. 18, 2002.

There are limitations to these black boxes. If the data from a black box is retrieved from an air bag module, then much of the data is only going to record impacts from the front. The air bag sensors are geared towards measuring impacts where the principal direction of movement and the principal direction of force is frontal. Rear end and side impact crashes often will not be recorded. Even partially frontal impacts with spinning and skidding movements may not be recorded. For the Vetronics Corporation Crash Data Retrieval Tool, the recorded data only goes back five seconds before "algorithm enable" (the triggering event for recording data). There is no record of the vehicle status before that. Also, there are only five discrete data points shown for each of the data elements. The points are interconnected "for ease of visualization" but they are only an "approximation of the actual curves." Fay, R., Robinette, R., Deering, D., Scott, Jr., "Using Event Data Recorders in Collision Reconstruction," SAE Paper 2002-01-0535, Society of Automotive Engineers, Inc., Warrendale, PA. Black boxes cannot take the place of a collision reconstruction performed by a qualified expert engineer. However, they can provide a vast array of information useful for the reconstruction, and they can provide extremely useful information to the lawyer initially evaluating a case.

The value of this information has not gone unnoticed by the government. In 1997, the National Transportation Safety Board (NTSB) recommended to NHTSA that it "pursue crash information gathering using EDRs." In the same year, NASA's jet propulsion laboratory recommended that NHTSA "study the feasability of installing and obtaining crash data for safety analysis from crashes recorded on vehicles." In 1999, NTSB issued a second set of recommendations that NHTSA require black boxes on school buses and motor coaches. In August 2001, a NHTSA working group on black boxes published a series of findings:

* EDRs have the potential to greatly improve highway safety by improving occupant protection systems and the accuracy of crash reconstructions. * EDR technology has potential safety applications for all classes of vehicles. * NHTSA has incorporated EDR data collection in its vehicle research databases. * Open access to EDR data will benefit researchers, crash investigators and manufacturers in improving highway safety. * Studies of EDRs in Europe and the United States have shown that driver awareness of an onboard EDR reduces the number and severity of crashes. * Given the differences between light vehicles compared to heavy trucks, school buses and motor coaches, different systems may be required to meet the needs of each vehicle class. * The degree of benefit from EDRs is directly related to the number of vehicles operating with an EDR and the current infrastructure's ability to use and assimilate the data. * Automatic crash notification (ACN) systems integrate on-board sensing and EDR technology with other electronic systems, such as global positioning systems, to provide early notification of the occurrence and nature and location of a collision. * Most systems utilize proprietary technology and require the manufacturers to download and analyze the data. "Event Data Recorder Research History," www-nrd.nhtsa.dot.gov/edr-site/history.html (last visited October 6, 2003).

How rapid is the use of black boxes in cars? By 2004, NHTSA says between 65 percent and 90 percent of all 2004 vehicles will have some sort of recording ability. By 2008, the agency wants recorders in all vehicles to collect up to 42 specific date elements, including the time it takes for air bags to deploy. Feds Say Black Box Boxes Not Needed, Associated Press, June 10, 2004.

Of course with the spread of the popularity of these units also comes some thorny issues that are the subject intense debate right now. Who "owns" this information and who is entitled to view it? If video and audio features are added to black boxes in private vehicles (and there are such units in commercial vehicles now), do the occupants of these vehicles have rights of privacy that are more precious than the information to be gained from these units? "The real issue is one of notice, and the problem arises from the fact that information is being collected about people's driving behavior without them knowing," said David Sobel, general counsel of the Electronic Privacy Information Center, a District-based public research center that focuses on civil liberties issues. Matthew Fordhal, Black box: for cars a surprise Washington Times, July 2, 2003. Like another black box in our society (the breathalyzer machine), who wants their rights and liberties decided by a machine over the testimony of a human being and/or the presence of physical evidence at the scene?

One state has taken the first step towards regulating the use of black boxes and addressing the privacy concerns. Effective July 1, 2004, California Vehicle Code § 9951 requires car manufacturers to disclose the existence of the black box in the vehicle's owner's manual. To download information recorded by the black box, one of the following events must occur: the vehicle's owner must consent, a court must issue an order to download the information or the information must be used solely for medical research, to improve motor vehicle safety or to service/repair the vehicle.

Do not bury your head in the sand and think that you do not have to bother with this piece of equipment in motor vehicle collision litigation. Black boxes are here, and one day, all vehicles on our roads will have black boxes installed. Hopefully, there will be more uniformity in their use, application and retrieval processes so that more people can have access to this information and manufacturers can continue to improve vehicle safety.

Mark Joye practices in N. Charleston and focuses in the areas of products liability, wrongful death and personal injury law.

The article origninally appeard in the September 2004 issue of South Carolina Lawyer and was reprinted with permission.

Copyright (c) 2004 by the South Carolina Bar. All rights reserved. No part of this publication may be reproduced without written permission.