A California Privacy Right in Vehicle Data
In People v. Xinos, 192 Cal. App. 4th 637 (2011) (PDF), the California Sixth District Court of Appeal ruled on a person’s privacy right in his vehicle’s sensing and diagnostic module (SDM) data. This issue is a matter of first impression in California. An SDM stores vehicle data such as engine speed, vehicle speed, throttle percentage, braking, vehicle deceleration, airbag deployment, and the status of restraint systems. These devices are also termed event data recorders (EDRs). George Xinos hit and killed a pedestrian with his SUV while he was intoxicated and driving at 60 miles per hour. His SDM module recorded 5 seconds of data preceding his change in speed upon striking the pedestrian. He was convicted of vehicular manslaughter based in part on his excessive speed, which was determined from an analysis of his vehicle’s SDM data.
The Court of Appeal in Xinos held that the defendant had a reasonable expectation of privacy under the Fourth Amendment in the digital data stored on the SDM in his vehicle. The Court held that the SDM data was protected by the Fourth Amendment because “a motorist’s subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle’s SDM.” Furthermore, the Court held that the SDM data from Xinos’s vehicle was not admissible because the police did not have probable cause when they downloaded the SDM data. Probable cause exists where “the facts and circumstances within [an officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed, and that evidence bearing on the offense will be found in the place to be searched.” Brinegar v. U.S., 338 U.S. 160 (1949).
The Court found that the police in Xinos lacked probable cause because the “officers who conducted the download were merely complying with an unexplained request of the D.A.’s Office and believed no relevant data would be found” on the SDM. Therefore, the officers did not have probable cause because they lacked “knowledge” and “reasonably trustworthy information” that “evidence bearing on the offense will be found” in the SDM data. In future cases, although the SDM data is protected against unreasonable search under the Fourth Amendment in California, the authorities investigating a crime would only need to obtain a warrant, or anticipate the data they seek on the SDM, before they download the data.
Interpretation of the Privacy Right in Vehicle Data
In Xinos, the Court’s two significant findings on privacy rights in SDM data were: (1) Statutes that prohibit downloading SDM data “do not dictate the parameters of the Fourth Amendment”; (2) “A motorist’s subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle’s SDM”; therefore, SDM data is protected by the Fourth Amendment.
The Court found that California Vehicle Code Section 9951, which proscribes use of SDM data, did not define the protection of SDM data under the Fourth Amendment. Under Section 9951, law enforcement must obtain a court order to download the data: “[SDM data] … may not be downloaded or otherwise retrieved by a person other than the registered owner of the motor vehicle, except … In response to an order of a court having jurisdiction to issue the order.” In support of its conclusion, the Court of Appeal noted that the US Supreme Court has consistently held that whether state law authorized or prohibited the search is irrelevant in determining the parameters of a search under the Fourth Amendment. See Atwater v. City of Lago Vista, 532 U.S. 318 (2001).
The Court of Appeal nevertheless concluded that the SDM data is protected by the Fourth Amendment because an SDM is an internal component of a vehicle. Under Katz v. U.S, 389 U.S. 347 (1967), an individual expectation of privacy is protected by the Fourth Amendment if the individual exhibits a subjective expectation of privacy and this subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable’.” In U.S. v. Ross, 456 U.S. 798 (1982), the Supreme Court found that motorists have a reasonable expectation of privacy to places in their vehicle where there is no probable cause to search.
The California Sixth District Court of Appeal expanded the personal privacy rights of motorists when it held that drivers have a reasonable expectation of privacy under the Fourth Amendment on their SDM data. This is a fortunate ruling for drivers as, in general, they are unaware that car manufacturers have been surreptitiously installing SDMs and EDRs in automobiles since the early 1990s. The Court may have circumscribed its holding by noting that the data was created by the vehicle and for the vehicle’s operation: “[t]he precision data recorded by the SDM was generated by [defendant's] own vehicle for its systems operations.” Therefore, the holding may not encompass user generated data or data not tied to the vehicle’s systems operations. In light of the proliferation of digital monitoring devices in automobiles it remains to be seen how other courts will assess the privacy rights found in this ruling.