Police Want Access to Your ‘Data Mobile’

This op-ed originally appeared in DC Journal on July 8, 2024.

The word “automobile” is beginning to feel outdated. Today’s cars could be more accurately described as “data mobiles,” seeing that so many of their features use the software we usually see in smartphones and laptops. All of the latest bells and whistles that come with a modern vehicle — lane departure warnings, Bluetooth and cloud connectivity, and even full self-driving capability, to name a few — are fueled by data that are becoming increasingly personal. It is so personal that it’s time for policymakers to consider applying Fourth Amendment protections to the digital content of “data mobiles.”

The collection and sharing of data isn’t in itself a bad thing. After all, it’s thanks to this market for data that consumers have been introduced to countless new products and services across every industry. Auto manufacturers use it to develop better safety features as well as infotainment services: location information makes it possible to request emergency assistance services with the press of a button, while internet-connected systems allow drivers to stream music, find the nearest gas station, and even get diagnostics sent directly to their phone. These innovations add value to the consumer’s experience on the road.

The concern we face, however, is with the privacy and security implications of this new territory. This double-edged sword has state legislatures nationwide continually debating how to best regulate how companies handle consumer data. For all the talk about safeguarding sensitive info from third parties, there is one group with arguably the most interest in this data and who seems to be overlooked in every discussion: law enforcement.

It’s easy to understand why policymakers and even the public exclude police or any other government agency from the list of those we wouldn’t want accessing our data. Things like location information, text messages, phone calls, or any other digital footprint can make it easier to catch criminals and keep the community safe. Just because police can access that information, however, doesn’t mean they should be able to whenever they want. Especially when they have repeatedly misused it and caused more harm than good. The entire purpose of the Fourth Amendment is to protect the public from such abuses by requiring that government officials get a search warrant before searching someone’s personal belongings. In the digital era, this standard is more important now than ever.

Last month, it was revealed that law enforcement has been obtaining customer location data from automakers either without a warrant or subpoena, a practice that seems to be in direct violation of a promise made to consumers by the auto industry. In a letter to the Federal Trade Commission, senators Ron Wyden of Oregon and Edward Markey of Massachusetts highlight that this information can reveal if Americans “have traveled to seek an abortion in another state; attended protests; support groups for alcohol, drug and other types of addiction; or identify those of particular faiths, as revealed through trips to places of worship.”

Like smartphones, our cars can reveal incredibly personal details about us: who we are, where we go, and what we do or say. Whether you like it or not, this technology is not going away. In fact, Congress and the Biden administration have mandated, through the 2021 Infrastructure Act, that automakers be required to include “advanced impaired driving prevention technology” by 2027.

Examples of these anti-drunk driving systems include receptors that can passively monitor a driver’s breath, cameras that monitor the eyes and face for alertness, and biometric sensors that can measure the alcohol emitted through the pores in the fingers. It was this mandate that Rep. Thomas Massie of Kentucky was sounding the alarm on last year.

Rep. Thomas Massie

Lawmakers from Utah foresaw this new threat to privacy and unanimously passed legislation that nullifies the “automobile exception” to the warrant requirement for location data. While the protections are limited to location data, it’s an essential first step toward safeguarding what’s digitally available from one’s car. To provide complete protection from warrantless government surveillance, the legislation would ideally cover all stored data in a vehicle, including camera footage, the uploaded contents of a cell phone, biometrics, driving statistics or diagnostics, etc.

Legislators interested in protecting the Fourth Amendment rights of their constituents should follow Utah’s lead in requiring search warrants for vehicle data and any other third-party data that law enforcement might try to access.