Warrant Needed for “Black Box” Data in Florida

by Wilson Elser

Wilson Elser

In a case of first impression in Florida, a split appellate court in State of Florida v. Charles Wiley Worsham Jr., No. 4D15-2733 (Fla. Dist. Ct. App. Mar. 29, 2017), held that a warrant was necessary before law enforcement could download information from a vehicle’s event data recorder (aka black box). In so ruling, the majority reasoned there was a reasonable expectation of privacy in the information retained by an event data recorder, and downloading that information without a warrant violated the Fourth Amendment.

Worsham, who was charged with DUI manslaughter and vehicular homicide, moved to suppress evidence police obtained from the vehicle’s black box. The motion was granted, and the majority upheld the suppression of data from the black box, focusing on the evolving nature of technology and privacy. It analogized the black box information to that of other electronic storage devices for which courts have recognized a reasonable expectation of privacy, such as a cell phone. See Riley v. California, 134 S. Ct. 2473 (2014).

The majority rejected the argument that the defendant had no reasonable expectation of privacy in the data because it was recorded while the defendant was driving on public roadways. Instead, it held that the data was difficult to extract and interpret, and not all of the recorded information was exposed to the public. Although the event data recorder did not store the same quantity of information as a cell phone, it documented more than what was voluntarily conveyed to the public. In reaching its decision, the majority relied on two United States Supreme Court opinions. The first was the Court’s opinion in Katz v. United States, 389 U.S. 347 (1967), which stated citizens have a guaranteed right to be free from unreasonable searches and seizures where information is sought to be preserved as private, even when that information may be accessible to the public. The second was Justice Alito’s concurring opinion in United States v. Jones, 565 U.S. 400, 430-431 (2012), where he found that reasonable expectations of privacy can be violated by the “long-term monitoring” of a vehicle’s movement by a tracking device.

The majority also noted the Driver Privacy Act of 2015, which states “any data retained by an event data recorder is the property of the owner of the motor vehicle in which the event data recorder is installed.” 49 CFR § 563.5. The Act explains that the event data recorder may not be accessed by a person other than an owner and lays the groundwork for a right to privacy concerning the information contained in the event data recorder.

In conclusion, the majority held that “the constant, unrelenting black box surveillance of driving conditions could contribute to a reasonable expectation of privacy in the recorded data.” In view of that and the fact that “the data is difficult to access and not all of the recorded information is exposed to the public,” the court found that “Worsham had a reasonable expectation of privacy … and ... that a warrant was required before police could search the black box.”

The dissenting opinion disputed the notion that black box data had privacy concerns similar to cell phone data, reasoning, “the data was not personal to [the driver], was not password protected by [the driver], and was not being collected and maintained solely for the benefit of [the driver].” The dissent also noted that event data recorders are installed for the benefit of the National Highway Traffic Safety Administration and extraction of such information does not invade a driver’s reasonable expectation of privacy.

This case may hamper law enforcement’s investigation, but likely does not stop law enforcement from getting access to a vehicle’s event data recorder. Judges probably will grant warrants routinely to allow law enforcement to retrieve this important data. In a civil context, the parties may have to wait for law enforcement to release the vehicles.

In the meantime, Worsham should not apply to the civil context. Defense attorneys still need to send preservation of evidence letters to claimants and vehicle owners, and then seek their permission to get access to the event data recorder. If the owner denies access, Florida law allows for discovery via a pure bill of discovery before the claimant files suit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.