Is Your Car Tracking You? Car Technology and Privacy

The next time you get into your car, it may be listening to you – where you drive, how fast you drive, even what music you’re listening to.  And you might not able to control who it tells.

In January, Sens. Amy Klobuchar (D-MN) and John Hoeven (R-ND) sponsored the Driver Privacy Act, which aims to place control of cars’ “black-boxes” in the hands of the owners of the cars – not the government.

How Does Your Car Track You?

Your car’s black box – or “event data recorder” – keeps track of what happens in a collision.  That is, it only begins recording when it thinks you’re in trouble – usually due to the sudden jolt associated with a collision.  It doesn’t know if you were drinking, or using your cell phone, or breaking any other laws.  It doesn’t know where you were, or where you were going.  While EDR data is useful in reconstructing what happened in an accident (and so is of interest to insurance companies and law enforcement), it is not useful for conclusively proving fault in litigation. Currently, several states have laws placing control of the EDR data in the hands of the owner of the car; there is no federal statute, however, which is a gap the Driver Privacy Act seeks to fill, ensuring that you are the owner of your EDR regardless of what state you happen to be driving in.

What the Driver Privacy Act does not address is the data collected by hardware (like cell phones) or software (like the Android operating system that will be standard in some GMC, Audi, Hyundai, and Honda models in the next model year).  Cell phones and on-board GPS systems can monitor your speed, location, and frequently visited locations.   Did you Google the nearest Starbucks? It’ll tell you when you’re close, even if you didn’t ask it to.

What Do the Courts Say?

The good news is that privacy experts are keeping an eye on your rights.  The bad news is that the courts aren’t entirely sure what those rights are.  In the early 1980s, the Supreme Court heard a pair of cases dealing with GPS tracking devices placed in containers and sold to suspects, who then drove to locations where they were making drugs.  (United States v. Knotts, 460 US 276 (1983), and United States v. Karo, 468 US 705 (1984).)  The Court held that although the defendant did not consent to the tracker being placed in the vehicle, all that the tracker did was alert nearby officers to the whereabouts of the cars as they drove along public streets.  Because the vehicles were in the public view, the actions of law enforcement (in these cases, just monitoring something they could see anyway) did not constitute a “search” under the Fourth Amendment.

Conversely, in 2012 the Court held in United States v. Jones, 132 S. Ct. 949 (2012) that affixing a tracker to a suspect’s car is a “search” for Fourth Amendment purposes.  The difference, says the Court, was knowledge: in Karo and Knotts, the defendant knew he was purchasing the container (although he did not know it had the tracker in it). In Jones, the defendant was not able to consent to the placement of the tracker on his car; a 5-4 majority determined this was a trespass onto his personal property and therefore an illegal search.

What This Means

How does this apply to you? The Supreme Court is notoriously (and intentionally) narrow in their Fourth Amendment opinions, especially when technology is involved.  The rulings in Karo, Knotts, and Jones are applicable to that specific situation only, so unless you find yourself buying ether to make cocaine, you’re probably in uncharted territory.  You can conclude, however, that your expectation of privacy diminishes the more control you have over the presence of technology in your car. For example, I own a smart phone that knows where I live and work – because I told it.  This is useful because it alerts me if there’s traffic on my commute; it is worrisome because it means that Google knows where I work.  If I start seeing ads in Chrome (which syncs to my phone) for restaurants near my office around lunchtime, I know why – and I can’t get mad at having my “privacy invaded.”  I told Google where I am during the day.  The fact that they’re capitalizing on this is not their fault; it’s shrewd marketing.

What if your behavior isn’t exactly legal?

The entire situation gets a bit stickier if I’m engaged in illegal activities.  If the same software that powers my phone is integrated into my car, my car now also knows where I go. Because I know that technology is in my car, I don’t have an expectation of privacy in the information the technology gathers.  With a lower expectation of privacy comes a broader definition of “legal search,” and any law enforcement that has probable cause to suspect I’m dealing drugs now has the legal authority to access my GPS data. Like the defendants in Karo and Knotts, I consented to having the software (tracker) in my vehicle, and because of that consent, I have waived most Fourth Amendment argument.  From there, any search is more likely legal (assuming no other police misconduct) and my data is now public record.

The Driver Privacy Act doesn’t address any of these issues (and likely won’t, while the relationship between technology in the law is still so murky), but it’s a start.  And what can you do? You can choose to drive a car from before the turn of the century, turn off your phone’s GPS feature, and not avail yourself of any of the technology available to you.  Or come to grips with the fact that these devices are, in some way, tracking you.

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