Lawyers reaching for in-car data

Information gathered by vehicle telematics systems such as General Motors' OnStar, Ford's Sync, BMW ConnectedDrive and others is garnering increased attention from lawyers who see the data as a puzzle piece in building court cases.

It's a sign that privacy concerns raised about telematics data won't go away soon. At the least, the industry's quest to be closer to consumers through telematics has created new responsibilities involving data management.

Those responsibilities include complying with court orders to turn over telematics data, which automakers say they have done.

The privacy terms for ConnectedDrive's BMW Assist component says it may "collect and retain an electronic or other record" of a person's location or direction of travel at a given time -- providing another potential legal tool for lawyers to go along with cellphone records, vehicle black boxes and even airbag modules.

That may irk consumers who worry about an all-seeing eye keeping tabs on their travels.

Of course, limited vehicle data can't stand alone, experts say. The data must be backed by other evidence. But lawyers say they're interested in using the data to build cases.

"It certainly is an intriguing new thing," said Don Slavik, a product liability lawyer who has worked on litigation involving Toyota and unintended acceleration.

"It introduces some questions of privacy issues that people aren't aware of. I wasn't aware of some of this stuff until recently."

Slavik said he hasn't used vehicle telematics data yet, but he may turn to such data in future cases.

He said: "We've just learned about the large volume of data going through systems. Not just one or 10 or 20 pieces of data, but thousands of pieces of data that are reported."

Automakers make it clear in their privacy agreements that telematics data will be released to the courts and law enforcement if necessary.

Ford Motor Co. said in an emailed statement to Automotive News that it receives court orders "on behalf of law enforcement or individuals involved in litigation" to provide data from "various vehicle modules." The data, which sometimes include location, can be retrieved only with "direct physical access" to the vehicle, Ford revealed.

For those concerned that they're constantly being monitored, Ford said Sync doesn't track customers or transmit data continuously from a vehicle. The company also said no information is wirelessly transmitted from the vehicle without customer consent.

Ford said the company receives location data only when customers use services such as turn-by-turn directions or look up points of interest.

"Location data is only shared with our partners when necessary to fulfill the services requested by the customer," Ford said. "As you would expect, our partners are legally bound by contract to protect this information. Ford does not share such data with any other companies, and Ford does not sell this data."

OnStar said it "complies with its legal obligation to court orders or subpoenas."

In an emailed statement, OnStar said it doesn't "share data with law enforcement absent a court order unless it is necessary to protect the safety of its customers or others." OnStar does provide data to police in cases of stolen cars and can cut off a car's power.

Data gathered from vehicle telematics face roadblocks in the courtroom.

In such cases, the chain of custody is crucial, said Bryant Walker Smith, who teaches law and engineering at the University of South Carolina.

Smith said the chain of custody establishes whether there has been an opportunity for parties to manipulate data.

Questions raised may include:

• Who retrieved the system from the vehicle? Then what was done with it?
• Who downloaded the data? What was done with the data after the download?

Smith said that can be a "complex" and "onerous" situation.

Then, Smith said, there is the aspect of reliability. Toyota has said in the past that its event data recorders, for example, can't always be trusted.

Smith said vehicle data won't always have the answer. It isn't possible to "press play" and see exactly how a person's entire journey played out, he explained.

And, Smith said, increased interest in data generated by in-car systems may lead to more privacy protections.

"If you look at Supreme Court cases on the criminal side, there is this growing realization from the justices that there is a cloud of information that is very personal to people that is no longer just in their heads, no longer just in their houses," Smith said. "Maybe that sphere around them does deserve some additional protection."

He continued: "Most recently, that has been in respect to cellphones. What is the dividing line between a smartphone and a smart car? Unclear. Maybe there will be a growing judicial notice of this potentially protected space."

With numerous telematics offerings available across the industry, standards will be needed to regulate what information is collectible and the format it's gathered in, said Thilo Koslowski, an analyst at technology research firm Gartner Inc.

If the courts are going to use vehicle data from various manufacturers, Koslowski said, "there have to be some defined guidelines" eventually.

In-vehicle data may have limited value as evidence simply because telematics systems are not designed to serve the legal system, one expert said.

Ultimately, the purpose of collecting vehicle telematics data is to offer safety services and other benefits to motorists, not build legal cases, said David LaBahn, CEO of the Association of Prosecuting Attorneys in Washington.

If the systems were built with the courtroom in mind, LaBahn said, they would track details such as who is driving the car and information about surrounding traffic.

In reality, the tidbits of seat-belt use information or location data can corroborate only portions of an argument. LaBahn said the data still must be combined with other evidence.

But, LaBahn said, some jurors will wonder about vehicle telematics in certain cases, which could put pressure on lawyers to use the data.

"We call it the 'CSI' effect with jurors," LaBahn said, referring to the popular TV show "CSI: Crime Scene Investigation." If location is important, he said, "the jurors are sitting there saying, 'Didn't that car have OnStar?'

"Certainly, it can come up in jurors' minds, and that is something the prosecutor and defense should take into account as they put their case together."

In recent years, automakers have provided more services such as roadside assistance, diagnostic reports and others that require vehicle data collection.

The University of South Carolina's Smith said auto manufacturers want customers to see them as providers of infotainment and other digital information, not just movers of metal.

Automakers want to use telematics services to extend their relationships with customers long after the cars have been sold. Naturally, Smith said, that leads to new liability implications.

Roger Lanctot, associate director of automotive multimedia and communications service for Strategy Analytics, said the firm's surveys show that some consumers are willing to surrender privacy to enhance safety. However, he said, many people still haven't wrapped their minds around the idea and embraced data-hungry telematics systems.

"Companies are continuing to assert some kind of control over these systems even after they've sold them. Data is a big part of that," Smith said. "As it becomes possible for a company to do more, more will be expected of them, perhaps in monitoring, perhaps in warning users of newly discovered dangers, perhaps in preventing the misuse of their products."

Let's say the federal government is conducting a crime investigation, and it requests vehicle telematics data for thousands of people from an automaker.

Can the government do that?

The traditional answer is yes, said Jonathan Weinberg, a law professor at Wayne State University in Detroit. Consumers, he said, voluntarily give up their information to companies and can't complain about use of the data under this scenario.

But, Weinberg said, there is pushback to that line of thinking nowadays because so much information is filtered through third-party technology companies, whether it comes from a mobile device or a vehicle.

Weinberg brought up a ruling in a federal court in Detroit in a case in which the government wanted to access someone's email. The government argued that the person gave up the information to the Internet service provider.

The court denied that argument because individuals would lose large areas of privacy, Weinberg recalled.

He said the legal system is just beginning to grapple with privacy concerns around telematics data in vehicles.

"The availability of this information means we need to resolve a whole lot of new questions. Who can get access? Not only judges, but also legislators," Weinberg said.

"Are there circumstances where we don't want to make it available to the government, where we don't want to make it available to the court? There are very real privacy considerations wandering around here."