knowing about it. Warrants have been
issued in criminal cases in some states
to access vehicle EDR data. The National Highway Traffic Safety Administration (NHTSA) released a mandate on
vehicle EDRs (47478-47489), providing
a minimum standard for the data that
EDRs collect. Fifteen types of vehicle
crash data are required by the NHTSA.
These include: pre-crash speed, engine
throttle, brake use, measured changes
in forward velocity, driver safety belt
use, air bag warning lamp status, and
air bag deployment times.
Courts have been more willing to accept EDR information as a reliable source
of empirical data. Recovered empirical
data avoids the memory hole of oblivion
when such product data is not recovered.
Because of the expansion of EDRs into
consumer household products other than
vehicles, legislative action in states may
be necessary to define the scope and access to an appliance’s data.
LAWS FOR THE LITTLE ‘BLACK BOX’
Thirteen states have enacted laws related to EDRs or “black boxes” in vehicles. The chart
below offers an overview of the regulations state by state.
States/regulation regulation 1 regulation 2 regulation 3 regulation 4
Arkansas Applies Applies Applies Applies
California Applies Applies
Colorado Applies Applies Applies
Maine Applies Applies
Nevada Applies Applies
New Hampshire Applies Applies
New York Applies Applies
North Dakota Applies Applies Applies
Oregon Applies Applies Applies
Texas Applies Applies Applies
Virginia Applies Applies Applies Applies
Washington Applies Applies Applies
regulation 1: Specifies the vehicle owner as the owner of the EDR data
regulation 2: Restricts access to EDR data, unless procured via a warrant or court order
regulation 3: Restrict insurers’ access to, and use of EDRs
regulation 4: Requires manufacturers or dealers to provide notice or make certain
disclosures to consumers about EDRs, consistent with federal law.
Florida doesn’t specifically address EDRs, however, there is a computer trespass statute that
could cover EDRs. This law doesn’t address who owns or who has access to the data.
All of the states above, except California and Connecticut, give ownership of the EDR data to
the vehicle owner. Access to the data is restricted, with the exception of a court order, by all
the states. All but Connecticut, Oregon, and Washington restrict insurers’ access to the data.
Source: www.consumeraffairs.com and www.harristechnical.com.
In “1984,” the term “doublethink”
was euphemistically coined for simul-
taneously holding and believing con-
tradictory beliefs. What EDR and smart
technology may produce is empirical
data that would ostensibly undercuts
“doublethink” about what happened
to a product involved in a failure sub-
ject to a subrogation investigation. The
Whirlpool patent discussed above noted
black box operational data could be used
by insurance companies to assess the
causes and effects of a destructive event.
Physical evidence to include recover-
able EDR smart technology data needs
to be preserved after a loss event, and
the value of that data will not be known
until a complete subrogation investiga-
tion is completed. Recovered data needs
to be properly secured and evaluated
with other evidence, witness statements,
available video/audio and other details,
as part of any subrogation investigation.
In addition, data may assist in establish-
ing an area when a loss occurred as well
as the cause of a loss.
Peter Lynch is a member of the subrogation and recovery department at Cozen
O’Connor, practicing in the firm’s San
Diego office, with an emphasis in fire
losses, contracts, and other civil matters.
Lynch may be contacted at plynch@
cozen.com; or via Twitter @firesandrain.
For information about emerging subrogation and recovery issues, visit http://sub-rogationandrecoverylawblog.com/ and
follow @CozenSubro on Twitter.
Paul Blanchard is a large loss regional
general adjuster with Fireman’s Fund
Insurance Company. He has more than
25 years of experience in the property