Yesterday, the Georgia Supreme Court is set to hear oral argument in an appeal brought by a defendant convicted of vehicular homicide and other charges related to a fatal car crash. (Mobley v. State, No. S18C1546). The defendant is appealing the lower court’s order that denied his motion to suppress evidence that was downloaded and obtained from the car’s airbag control module by the police without a search warrant at the scene of the accident (note: a search warrant was obtained for the physical device the next day). Thus, the principal issue in the appeal is whether a search warrant was required to retrieve the data from the vehicle’s airbag control module.
The answer to the question will likely turn on the particular facts of the case and applicable constitutional law and state criminal procedural law. The Georgia Supreme Court will necessarily have to decide whether recent U.S. Supreme Court precedent in Riley (warrant is generally required before searching a cell phone for data, even if the phone is seized incident to arrest) and Carpenter (acquisition of cell-site records was a search under the Fourth Amendment) are applicable to this instance of private data collection. In short, will the Court view a car’s automated data as sensitive as certain data stored or produced by an individual’s mobile phone?
Taking a broader view, the outcome of this appeal could be an early indicator of how courts will treat the digital “black box” data produced by today’s increasingly advanced automobiles (e.g., event data recorders, onboard computers, communications interfaces) and tomorrow’s autonomous cars (e.g., array of sensors, cameras, GPS, software outputs related to assisted driving). Whatever the result, the Georgia court will be drawing a line regarding privacy rights and new technologies. As we noted in a prior post about the U.S. Supreme Court’s Jones decision about GPS tracking, a comment by Justice Alito in a concurring opinion in the 2011 Brown decision – holding that videogames are entitled to First Amendment protection – remains apt today:
“In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar.”