MARYSVILLE — Cleora Swirtz found out the hard way that there was a data-recording “black box” in her car.
In 2004, Swirtz, 21 at the time, had been in a coma for more than a month after her car ran into a tree on a wet roadway at night on 99th Avenue Northeast east of Marysville.
At s
ome point after she finally regained consciousness, she learned that her boyfriend, Randall Frank, 17, had been killed in the accident.
“I was more or less in shock, I didn’t know what to say or think,” said Swirtz, of Marysville.
Several months after the crash, based partly on the inf
ormation gleaned from the device in Swirtz’ car, she was charged in Snohomish County Superior Court with vehicular homicide. In 2007, that data helped convict her.
“I had no idea, it was all new to me,” she said.
It’s likely news to many others as well that their cars contain devices that record information about vehicle speed, seat belt use, braking, RPMs and more.
The “black boxes” are more formally called event data recorders, or EDRs.
85 percent of cars
As of last year, roughly 85 percent of all the cars on the road were fitted with the devices, according to the National Highway Traffic Safety Administration.
Manufacturers and other proponents say the black boxes record information that is useful for safety and accident analysis.
Privacy advocates, on the other hand, say more laws are needed to protect vehicle owners from how the information is used.
“I think there’s a lot more bad ways how the data can be used for various things,” said Gary Biller, executive director of the National Motorists Association in Madison, Wis.
The boxes were first installed in cars in the early 1990s by General Motors as a way to control deployment of airbags, said Alan Adler, a spokesman for General Motors in Detroit.
Airbags may be controlled by several different types of crash sensors, including EDRs.
The “black box” is separate from the array of microprocessors that control most basic auto functions. The devices are not black but rather a brighter color, such as silver, that makes them easier for investigators to find after an accident, said Det. Joe Goffin, a crash investigator for the Snohomish County Sheriff’s Office. The devices are about the size of a large matchbox. Where they are installed depends on a vehicle’s make and model, usually behind the dashboard or under the driver’s seat, Goffin said.
The EDR stores only about the most recent 5 seconds of data. In the event of a crash — when the airbag is deployed — the information in the device is permanently captured. Unlike the black boxes on airplanes, it does not record voices.
There are many different types of EDRs, and some record more information than others. In addition to basics such as speed, braking and airbag deployment, some also store data, for example, on seat belt use and changes in velocity in the seconds leading up to impact.
All EDRs in vehicles manufactured for sale in the United States after Sept. 1, 2012, must record 15 specific functions, as determined by the National Highway Transportation Safety Administration, such as how much the accelerator pedal was being pressed, the vehicle’s speed and specific changes in the vehicle’s velocity either longitudinally — front to back — or laterally, from the side.
But there’s no blanket requirement that EDRs be installed in vehicles.
Long list of concerns
The National Motorists Association doesn’t have a problem with making EDRs uniform but has a long list of other concerns. The devices can’t be disabled, and in most cases vehicle owners don’t have access to the information inside.
“Our concern is that a lot of people with black boxes don’t know they’re there, or don’t know how to access the data,” Biller said.
Few states provide specific legal protection for vehicle owners.
“We want to make sure that it’s very clear that the owner of the vehicle owns the black box and owns the data and has the right to determine who gets the data, if anybody,” Biller said.
A handful of states, including Washington, do have laws that specifically address EDRs or recording devices. The law here, which took effect in 2009, requires manufacturers to disclose in the owner’s manual that a vehicle is equipped with an EDR and prohibits access to information contained in the box, except by subpoena or with the owner’s permission.
Washington laws also apply to “automatic crash notification systems, geographic information systems, and any other device that records and preserves data that can be accessed related to that motor vehicle.”
This would seem to include data from OnStar, the communication system available in General Motors and Saab vehicles. With OnStar, customers agree to pay a fee for services such as roadside assistance, vehicle diagnostics, hands-free phoning, help with lockouts and more. When the car’s airbag deploys, OnStar is alerted.
OnStar is powered by a combination of the EDR, the car’s other computer systems, and cellular and GPS communication.
“These are all functions that use data packs from EDRs that help law enforcement and emergency medical personnel get to crash scenes,” Adler said. “You do everything you can to protect privacy, but what you try to do is help save lives.”
The OnStar privacy statement, updated Jan. 1, says the company may share information about customers with service providers, the car maker and its subsidiaries, the car dealer, and wireless service and satellite radio providers for marketing purposes.
“We may also share information we collect about you or your car as required by law, or to protect the safety of you or others,” the statement reads.
OnStar does not keep continuous track of the speed or location of a car unless activated by a request for service or by an accident, according to the statement, but exceptions listed include as “required by law,” as “required to protect our rights or property or the safety of you or others,” and as “required by us for research or troubleshooting purposes.”
Regarding EDRs, General Motors doesn’t have access to the data in individual boxes once the car is sold, Adler said.
“We do not have it and do not have access to it,” he said. “We don’t have any control over it.”
The National Motorists Association doesn’t believe boxes need to be installed on all vehicles — only for safety research, and that should be voluntary.
The group also is concerned that insurance companies could use information from black boxes to deny claims, though Biller could not cite any examples. The Washington state Insurance Commissioner’s office has received no complaints about insurance company access to EDR data.
For safety research, information is taken from EDRs in company-owned vehicles used by GM employees, Adler said. Data from those vehicles is collected, compiled and sometimes shared with the National Highway Traffic Safety Administration, he said.
The data also is used to defend GM products in litigation, according to the company website.
Among the general population of GM car owners, however, no one ever sees the information without a subpoena, EDR supporters say.
High-speed crash
In Swirtz’ case, the device revealed that her 2000 Pontiac Sunfire — a GM car — was traveling 104 mph when it hit the tree in a 35 mph zone.
She suffered head injuries, broken ribs, collapsed lungs and massive blood loss in the crash, which killed her boyfriend. She has no memory of the accident. There were no witnesses.
Swirtz, now 28, doesn’t remember anything for a couple of weeks leading up to the accident. She said she never had driven that fast before and doesn’t believe she would have done it intentionally. She says her accelerator had stuck on more than one occasion previously and might have done it again.
“I believe something happened beyond my control,” she said. “I would never have endangered my life, let alone my boyfriend, Randy, who I loved dearly.”
Her attorney, Marybeth Dingledy, argued that there was anecdotal evidence about Swirtz’s vehicle model being subject to spontaneous acceleration, and she said that the information from the car’s black box recorder was inconsistent with the engine’s recorded RPMs.
Accident investigators found no sign of any mechanical problem that would have contributed to the crash, according to court papers.
Dingledy said the car’s EDR alone didn’t convict Swirtz, noting that an analysis of the tread at the scene estimated the car’s speed at only a few miles per hour less than the data showed.
“I don’t necessarily trust the black boxes, but in this case I don’t think it was going to make a difference in the case,” she said. Prosecutors brought in a witness from General Motors to testify on behalf of the accuracy of the information from the box, said Paul Stern, a county prosecutor who worked on the case.
The jury convicted Swirtz of vehicular homicide.
She had a clean record before the accident. Blood tests found no drugs or alcohol in her system or Frank’s. Some jurors, and her boyfriend’s family, pleaded for leniency. Swirtz was given a relatively light sentence of 480 hours of community service, a $9,000 fine, a two-year suspension of her driver’s license, but no prison time.
While she has no objection to the EDR having been in her car, it was strange to find out about it later, she said.
“I felt like I should have been told, that I should have known about it. I had no idea what it was used for or any of that.”
The National Motorists Association opposes using subpoenas to obtain EDR information for law enforcement.
“I think they should tell people that they’re in the car,” said Dingledy, Swirtz’ attorney. “I understand the reasons for it but it’s also an invasion of privacy, I think.”
Snohomish County chief deputy prosecutor Joan Cavagnaro, who worked on the case with Stern, disagrees.
“I want what I do on my PC to be private, but if I look at child porn, then I know a police officer is going to get a search warrant to investigate what I’ve been looking at,” she said.
In 2008, Swirtz lost an attempt to reverse the decision in the state Court of Appeals. She is awaiting the results of an appeal to the state Clemency and Pardons Board, which handles requests for pardons addressed to Gov. Chris Gregoire.
Swirtz now works as a receptionist in Everett, her dreams of working in health care dashed after being convicted of a felony.
Swirtz needed extensive rehabilitation for her injuries. Seven years later, she still struggles with short-term memory loss and shortness of breath.
“Not a day goes by,” she said, “that I don’t think about my boyfriend and what happened.”
Bill Sheets: 425-339-3439; sheets@heraldnet.com.
Learn more
For more information on event data recorders:
State laws: www.crashdataservices.net/stateCDRlaws.html
“Black box” examples: www.crashdataservices.net/CDRExamples.html
Vehicles with black boxes by make: www.crashdataservices.net/Vehicles.html
Explanation of National Highway Traffic Safety Administration ruling: www.crashdataservices.net/NHTSAruling.html
FAQs: www.nhtsa.gov/EDR; www.crashdataservices.net/FAQ.html; www.harristechnical.com/mediaQ&A.htm
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