The EDR perspective is a little different for insurance carriers. Its data can deliver certainty to the resolution of some automotive claims. For example, in a fatal accident on an empty nighttime road, the data from a download can reveal facts when there are no witnesses. That’s an extreme example, but evidence that adds clarity is invaluable to those who calculate exposures: absolute answers protect reserves. At least for carriers, the privacy issue associated with data ownership dissipates when carriers assume the ownership rights of totaled vehicles. On the downside, though, ownership of totaled vehicles, as well as complex automotive litigation incorporating EDR data, can expose the carrier to new types of risk. Should the carrier download EDR data as a routine measure, and should the carrier remove and store all EDR modules under its control as a matter of policy? Evidence spoliation risk and a new cost stream associated with long-term storage are unforeseen consequences of harnessing a new technology for automotive claims resolution.

EDRs & The Court
Courts are currently admitting EDR data into proceedings, and appellate courts are upholding its use as well across the U.S. So far, the preponderant users of the data are automakers and criminal courts. Both are tech-savvy about the EDR and know how to use the information in the courtroom—automakers design and build them and law-enforcement personnel are trained in crash data retrieval. This skewed usage should even out as more parties become familiar with the technology and so, too, will the balance of civil to criminal actions using EDR data as evidence.

Invasion of Privacy Protection
Privacy protection has been a hot button EDR issue for state legislatures and has also affected the EDR strategy of federal agencies with transportation oversight. As of early 2008, twelve state legislatures have passed some form of EDR legislation. A leader in privacy-rights protection, California addresses the EDR’s privacy implications by requiring automakers to disclose to new-car buyers the presence of an EDR in occupant protection systems, and to prohibit the downloading of the data without car-owner consent. Other states restrict regulatory focus to a single EDR issue like disclosure or EDR access. At the national level, the August 2006 EDR rule published by the NHTSA requires automakers to disclose the presence of an EDR to car buyers, starting with model year 2011 cars. And, when the NHTSA and others use EDR data for research purposes, the derived data is purged of all identifiers for the sake of privacy.

The consumer mantra for the EDR is that the owner of the car owns the data. Although that works well enough for now in most states, especially with federal support from the NHTSA and the Federal Highway Administration, that perspective may face challenges as EDR use expands.

Peter R. Thom is principal of Peter R. Thom & Associates Inc., a national firm of consulting automotive engineers. Contributor Ryan Devine is a managing engineer at Peter R. Thom & Associates Inc.