By John G. Spooner
Staff Writer, CNET News.com
March 9, 2005 4:00 AM PST

As James Fitzgerald wheeled his tractor-trailer down Interstate 40 near the Nashville International Airport last summer, little did he know that a small black box aboard the truck might later help clear him of homicide charges.

His truck collided with a police car, killing an officer who had stopped to assist a disabled vehicle. Police alleged that Fitzgerald was traveling at least 80 mph at the time of the crash, and he was jailed on charges of vehicular homicide and aggravated assault.

But the 25-year-old trucker pleaded not guilty, and when his trial begins this summer, the black box will be his star witness. According to Fitzgerald's lawyer, Patrick McNally, data from the device shows that the truck was traveling at the legal limit of 70 mph.

"I think juries are much more inclined to rely upon electronic devices that measure speed than personal opinions of speed," McNally said in an interview with CNET News.com. "We live in an electronic age, and we've all learned to rely on electronic devices."

The case represents an unusual twist in the controversial use of digital information in cars. Although Fitzgerald views his truck's electronic data as a benefit, others say such technologies contribute to an increasingly Orwellian society where individuals' every move is monitored. Many are particularly galled by the notion of applying these technologies to the automobile on the open road, a symbol of American freedom that often represents a rite of passage from adolescence to adulthood.

The debate has intensified as manufacturers increasingly turn to high technology to differentiate their products in the hypercompetitive auto market. This tech trend has produced many features that have been credited with improving safety, including airbags, antilock brakes and stability control systems.

The annual death toll from car accidents fell from 43,005 in 2002 to 42,643 in 2003, according to data from the National Highway Transportation Safety Administration, or NHTSA. Injuries from accidents also declined. The agency attributes the changes to more-crashworthy cars and increases in safety belt use.

Despite these operational benefits, however, critics see a dark side to the use of information about motorists derived from devices such as black boxes. Noting that many drivers are unaware that their actions are being recorded, they say rights to privacy could be violated in the absence of regulations governing how the data can be used and interpreted.

"If you were squealing your tires or not wearing your seat belt, they'll say, 'We're going to start sticking you with fines so that you won't do that anymore,'" said Eric Skrum, a spokesman for the National Motorists Association, a group that describes itself as dedicated to protecting the rights and interests of motorists.

Skrum's group, along with the Consumers Union and the Electronic Privacy Information Center, are among those calling for the establishment of rules ensuring the protection of privacy in the use of black-box data. The Consumers Union and EPIC have raised their concerns in filings to the National Highway Transportation Safety Administration.

In a June 2004 announcement, the NHTSA proposed requiring manufacturers to include information about black boxes in owners' manuals for cars equipped with the technology. Although the federal traffic agency continues to gather feedback on its latest set of black-box recommendations, it's too early to say how the input will shape the agency's final ruling, a representative said. For now, the NHTSA has left it up to the courts to decide whether to admit the data as evidence.

According to the New York Law Journal, for example, a judge allowed information from a black box to be used at the trial of two New York men charged in a collision that left two people dead. The device installed in the men's car, a 2002 Chevrolet Corvette, indicates that it was traveling at 130 mph immediately before the crash.

A few states are joining the debate. A California law that went into effect in July 2004 requires manufacturers to provide customers with information on black boxes in cars and states that the data cannot be obtained without a court order or the owner's permission.

In North Dakota, Republican state Sen. Ray Holmberg has submitted a bill that would require automakers to disclose the presence of the boxes in new cars' owners' manuals and require dealers to disclose information about them in purchase contracts. The bill would give control of data collected by black boxes to vehicle owners, stating that the data can be downloaded by someone other than the vehicle owner only if it's being used for safety research or diagnosing problems, or if it's court-ordered or needed for crash reconstructions or investigations by law enforcement. The bill would also prevent black-box data from being used in court, unless ordered by the court or allowed by participants in the proceedings.

Holmberg says he believes other state legislators will follow California and North Dakota and begin regulating how black-box data can be used.

"Once it's accepted as something under your seat, it's very easy for, I would say, do-gooders, to say, 'We want to gather more information,'" Holmberg told News.com. However, he said, "I want to make it clear that they do have legitimate purposes for safety and gathering data regarding how a car handles in an accident. I don't have any problem with that."

Various estimates show that 15 percent of the 270 million cars on the road in the United States today contain some type of data-recording device. Roughly 65 percent of the 16.7 million new cars sold in the United States during 2004 were equipped with them, said Kevin Mixer, an analyst with Boston-based market research company AMR Research.

That means the number of black boxes on U.S. roads will rise significantly as newer models are sold. The National Highway Traffic Safety Administration in its announcement last June recommended that manufacturers install the devices in all vehicles beginning in September 2008, though automakers are not required to do so.

General Motors has installed the most black boxes to date, although Ford has also used data recorders widely in its lines. BMW, Chrysler, Honda, Isuzu and Toyota install boxes in some models, Mixer said.

Proponents of the boxes argue that concerns over privacy are overblown. Manufacturers might want to use the data to understand how their vehicles are performing, Mixer said, but "they're not interested in the fact that Kevin has a lead foot."

Others aren't so sure. "If they were being honest about this and it was for research, they could do this through a volunteer process," said Skrum of the National Motorists Association.

From a legal perspective, McNally views black-box data as he does other evidence obtained through a search warrant or wiretap. Courts must balance the competing interests of a vehicle owner's right to privacy against an outside party's interest in knowing specific information.

"When you distill it out to its bare element," McNally said, "a person who's driven a car in a proper manner generally has no problem with someone checking the event data recorder."