Will Your Car Tattle on You?

Will Your Car Tattle on You?

Technology can often be both a blessing and a curse, as one driver found out when her smart car’s safety features ended up implicating her in a hit-and-run accident.

Smart car + hit-and-run = Police on your doorstep

The combination of GPS navigation and automatic reporting is what spelled trouble for Cathy Bernstein, a 57-year-old resident of Port St. Lucie, Florida. According to report by the Washington Post, a Ford automobile driven by Bernstein was reportedly in an accident and the “911 Assist” feature automatically called emergency dispatchers to report the accident. This safety feature is supposed to help alert first responders when someone may have lost consciousness in an accident, but in Bernstein’s case, the system ended up informing the authorities that there had been an accident and — perhaps the most crucial factor — providing her exact location.

WPBF-ABC noted that the 911 Assist call came right after local police responded to a reported hit-and-run accident in the area that injured a woman named Anna Preston, and reported more details about how Bernstein was caught:

Around the same time [as the accident], police dispatch got an automated call from a vehicle emergency system stating the owner of a Ford vehicle was involved in a crash and to press zero to speak with the occupants of the vehicle.

The person in the vehicle, Cathy Bernstein, told dispatch there had been no accident, that someone pulled out in front of her and that she was going home. She said she had not been drinking and didn’t know why her vehicle had called for help.

Police went to Bernsteins’s home on Northwest Foxworth Avenue and saw that her vehicle had extensive front-end damage and silver paint from Preston’s vehicle on it. Bernstein’s airbag had also been deployed.

After further questioning by police, Bernstein reportedly admitted that she had not only caused this accident, but that was actually her second hit-and-run accident of the day, and she had hit Preston’s car while fleeing the scene of the first accident. As you might expect, they arrested her.

The feature is “opt-in,” but do people really understand what that means?

WaPo talked to Alan Hall, a spokesman for Ford, and while he had never heard of 911 Assist being used in this way, he noted that from the reports he had seen, the feature had “worked exactly like it was supposed to,” and could have been a lifesaver if the driver had passed out behind the wheel. “911 Assist can call for help, even if you can’t,” says the page on Ford’s website promoting the service.

According to Hall, the 911 Assist feature is opt-in, so drivers have to turn the feature on and pair it with their cell phones in order for it to operate. But, as WaPo notes, the story “does raise the point that people may not realize what they’re signing up for when they use the smart features on their cars.”

A hit-and-run driver is far from a sympathetic figure (especially in cases like this one, where Bernstein allegedly had two such accidents in one day!) but constitutional rights are not granted to just the angels among us. These features are promoted as a way to summon help when you are injured, not to automatically report information to law enforcement when you might have done something wrong.

This story brings up a host of legal issues, perhaps most obviously the protections in the Fourth Amendment against unreasonable searches and seizures, and the Fifth Amendment protections against self-incrimination.

Normally, the police cannot search your vehicle without a warrant or some sort of probable cause, unless you consent to the search. So that’s the critical question: when Bernstein opted-in to the 911 Assist system, did she consent to having the information gathered by the system provided to the police?

Prosecutors may point to the section of Ford’s website, where they describe how 911 Assist functions:

If you are involved in an accident that deploys your vehicle’s airbags—or, in some vehicles, activates the emergency fuel pump shut-off—911 Assist can use your Bluetooth-paired and connected phone to immediately place a call to a local 9-1-1 Call Taker. SYNC communicates the details of the accident, including the location upon request, to the Emergency Call Taker so that you can get the help you need.

In other words, if there is an accident, the technology “immediately” calls “a local 9-1-1 Call Taker.” It’s hard to argue that a reasonable person shouldn’t assume that meant involving law enforcement. Ford is also upfront in disclosing that 911 Assist transmits the details of the accident, including the location “upon request” (presumably meaning if the 911 dispatcher requests that information, it will be provided).

The law does not require that Bernstein admit fault for the accident — excuse me, accidents — that she allegedly caused, but Florida law does prohibit leaving the scene of a car accident that involves property damage (Fla. Stat. Section 316.061) or bodily injury (Fla. Stat. Section 316.027) until she had fulfilled the duty under Section 316.062 to “give information and render aid.” (basically, provide your name, address, vehicle registration, and driver’s license, and to report the accident and summon medical help if needed).

Here, Bernstein’s alleged flight from the scene of the hit-and-run accident was a crime in and of itself, a third degree felony to be precise. The police already knew that there had been a hit-and-run accident, because they were responding to Preston and getting her medical attention, but until Bernstein’s car made that phone call, they did not know she was allegedly involved.

Challenge for the courts: catch up with technology

If Bernstein can successfully argue that she did not consent to provide the information, does she have any other protections? The answer to that question illustrates the difficulty courts have keeping up with rapidly developing technology.

A 2014 United States Supreme Court case, Riley v. California, made headlines when the Court ruled that the digital contents of a criminal defendant’s cell phone could not be searched without a warrant, finding that modern cell phones function more like minicomputers and therefore warrant additional privacy protections. Police may search the body and surrounding area of a person when making an arrest, but, as Chief Justice John Roberts noted, “Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape,” the common justifications for searches incident to arrest.

(For a more detailed discussion of this topic, including a Virginia case where the court ruled that after a warrant had been issued to search a cell phone’s contents, the defendant could be forced to provide his fingerprint password, but not the numerical four digit passcode, see this post at American Criminal Law Review.)

Arguably, the type of information gathered by Ford cars equipped with the 911 Assist feature — the user’s personal identification, contact information, and physical location — is similar to the type of information that the Supreme Court deemed protected in the Riley case.

In Riley, the Court said that police needed a warrant to access the cell phone’s digital content. If the same argument is accepted in Bernstein’s case, that would mean that the information the police obtained when they went to her house — the conversation in which she denied and then admitted the accident, their visual observations of the damage to her car — would be inadmissible evidence, as “fruits of the poisonous tree,” or evidence obtained from improper sources.

Practically, however, that is unlikely to provide complete protection for Bernstein, as the police could then pull the call information from the 911 dispatcher’s records, which include Bernstein’s phone number and a recording of her voice. Add in any records produced from subpoenaing Ford, and prosecutors should have circumstantial evidence to support their case.

Is it really consent when you can’t avoid it?

Technology like 911 Assist is becoming increasingly popular, and will likely soon be standard equipment in automobiles. Hall, the Ford spokesman, told WaPo that at least 10 million Ford cars are on the road right now with this capability. Other car manufacturers have been rolling out their own similar technology, and these devices are scheduled to be in all cars in the European Union starting in April 2018.

If this technology becomes ubiquitous, especially if the ability to turn off the feature is eliminated, then it becomes harder to argue that drivers are consenting to providing this information. Additionally, a driver who borrows the car of a family member or friend could be unaware that this technology had been activated. There are limits to this argument, as the numerous cases out there where a teenage driver was caught by a red light camera in Mom or Dad’s car can attest.

And what if the technology becomes mandatory? Congress has passed a number of vehicle safety laws over the years, from requiring shoulder harness safety belts to airbags, and we generally view these as a positive development. But a seat belt does not call the police and tell them anything about you.

There’s been a similar debate over the past few years regarding ignition interlock devices, which Mothers Against Drunk Driving (MADD) advocates to be installed in the cars of anyone convicted of a drunk driving offense. The controversy arises from the fact that MADD has lobbied for national adoption of this technology in a way that many attorneys and motorist associations worry could result in forcing the devices to be installed in all new cars.

Policy makers need to evaluate the impact technology has on privacy and rights

We’re in a period of amazing technological advances. While I’m still bitter that I don’t have a flying car like The Jetsons led me to believe we would have by now, as someone who is admittedly a bit directionally challenged, the widespread availability of GPS navigation systems and smartphones has been an absolute godsend, and has made it a lot easier to travel safely and independently.

But there are drawbacks, and using your iPhone to find the best route to your favorite tacos means you are creating a incredibly detailed digital trail, and privacy advocates have been correctly voicing concerns about how this data is collected, how it is stored, and to whom that data is reported. As I wrote above, an alleged twice-in-one day hit-and-run driver wins few sympathy points, but the story does raise important questions about how our technology functions, how we want to define our privacy rights, and how the two intersect.

Follow Sarah Rumpf on Twitter: @rumpfshaker.

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