… “I don’t see how there can be an expectation of [EDR] privacy in a criminal case,” Gillingham insists. “When you’re driving on public land, you give up expectation of privacy.” Challenged on whether that statement conflicts with longstanding U.S. principles of search and seizure, he says, “There’s an expectation of privacy with regard to my body or my home; that’s very much different than the engine of my car.”
But there is a growing cadre of people who disagree with Gillingham, including the Court of Appeals of California, Sixth District, whichoverturned the manslaughter conviction in February 2011 on the grounds that law enforcement did not secure a search warrant to retrieve the data. (The other convictions were left intact.)
In the first civil lawsuits and criminal cases involving cars equipped with EDRs, auto companies claimed that they owned the data; courts eventually began ruling that it belongs to vehicle owners and lessees. But without federal laws governing who should have access to black box data, the matter was left to the states. Thus far, only 13 states have passed laws governing the ownership of EDR data.
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