In what is becoming a familiar scene in courtrooms nationwide, information collected from a car’s “black box” was used to convict a motorist of criminal charges.

On June 30, a Peabody, Mass., District Court jury found Michelle Zimmerman guilty of misdemeanor motor vehicle homicide in the death of her front seat passenger, Kenneth Carlson. The jury concluded Zimmerman was driving negligently when she skidded out of control and struck a tree on Jan. 4, 2003. Information collected from the event data recorder (EDR), or black box, in her GMC Yukon reported that Zimmerman was driving 58 mph in a 40 mph zone—on an icy road, according to Essex Assistant District Attorney William J. Melkonian. EDR data also showed that Zimmerman never applied the brakes.

Judge Santo Ruma sentenced Zimmerman to two years in prison, one year to be served with the balance suspended for three years of probation. The conviction carries a statutory 10-year loss of license.

Defense lawyer Robert Weiner has vowed to appeal based on his claims that the EDR data was misinterpreted and that police illegally obtained the data. The case could set a legal precedent in Massachusetts and nationwide where EDR information already has been introduced in more than two-dozen cases.

EDRs have been used in motor vehicles for years. Their main job is to serve data to other systems, such as ABS, traction control and supplemental restraint systems (SRS). As such, they continuously record driving factors such as speed, braking, engine rpm, throttle and air bag deployment. Auto manufacturers looking for ways to make their vehicles safer have engineered EDRs to store the five seconds of data that precede an accident (and sometimes a near miss). More than 40 million vehicles, including most built in the last five years, are equipped with similar EDR technology.

As courts more frequently use this information in criminal cases, privacy rights groups have raised concerns that EDRs are being used, or could be used, to invade the privacy of individuals.

The major issue surrounding EDR data is who owns this information. California became the first state to address this issue when it passed legislation taking effect in July 2004 that made EDR data the property of the vehicle owner. Third parties such as insurers and police must get either the owner’s permission or a court order to retrieve this data. Insurers automatically get access when a vehicle is totaled and they assume the title.

Arkansas, North Dakota, Nevada and Texas have passed similar laws. Eleven more states, including Massachusetts, Connecticut, Alabama, Montana, New Hampshire, New Jersey and New York have EDR legislation pending. This issue has particular impact on shops because they could be asked to turn over the EDR or provide access to it.

Along with questions regarding the use of stored EDR data in courts, privacy groups like The Center for Democracy and Technology have raised concerns about how EDR data could be used in the future, particularly if EDRs store driver information for long periods. This data could be used to paint an accurate picture of a driver’s daily activities and driving habits. The Center for Democracy and Technology says consumers have little idea that such information could be collected. The group worries this data could give the government and private companies Big Brother-type ability to spy on the traveling habits of motorists.

Products similar to EDRs, such as the Car Chip and global positioning system (GPS) technology, already have raised privacy concerns. The Car Chip allows parents and fleet owners to track driver speed, braking pressure and whether drivers have worn seatbelts. GPS products use satellites to pinpoint vehicle location but can also be used to track vehicle speed. In 2000, a rental car company assessed a motorist three $150 fines, claiming he had sped on three different occasions.

The federal government has demonstrated an active interest in acquiring this information. The National Highway Traffic Safety Administration (NHTSA) plans to require car manufacturers to standardize their devices by 2008 so that every EDR will record eight seconds of the same data in the same format. NHTSA has pledged to follow Privacy Act requirements by removing identity markers like vehicle identification numbers from data and by promising to use the data for safety only.

The Electronic Privacy Information Center (EPIC), a privacy advocacy group, says private sector companies, notably insurers, could use the data for business reasons and might use it against consumers. EPIC says these companies could find ways to compel consumers to turn over their EDR data. Insurers, for example, could demand customers give them access to EDR data or lose coverage. Insurers already often require customers to turn over medical records to get health coverage.

Insurers have shown interest in EDR data. A recent Los Angeles Times story quoted the March issue of Claims magazine, on the use of EDRs: “[B]ecause the data now can be obtained economically, EDR information is not just being relegated to serious accidents, but is being used to evaluate minor impact and non-casualty claims.” State Farm says it uses EDR data to help determine degree of fault in some accidents.

EPIC would like consumers to have the ability to turn off the devices and suggests laws be passed requiring legal entities to show probable cause that a crime has been committed before using any recording, positioning or communications system in vehicles.

Before EDRs are completely demonized, proponents of the technology point to significant advances in transportation safety the technology can help create. Dr. Ricardo Martinez, an emergency physician who served as head of NHTSA during the Clinton administration and currently on the board of Safety Intelligence Systems believes EDRs are an important step in an automotive safety revolution. He believes the technology will help lead to “smart cars” that will use wireless communication to send and receive messages from other vehicles about traffic conditions.

These cars will help drivers avoid accidents and send crash data readings to emergency responders in case of accidents. Martinez tells the Los Angeles Times, “We’re going to look back on this decade and realize that, in 2005, we were in the dark ages.”

Other proponents of the technology say motorists can use EDR data to defend themselves when they are wrongly accused of traffic violations. In the Zimmerman trial, the defense argued that the Yukon wheels spun on black ice at a rate of 58 mph. The vehicle itself, they argued, was traveling in the 40-45 mph range.

The prosecution retorted that the EDR figure of 58 mph was a low speed because the vehicle probably slowed as it skidded sideways. The prosecution further declared that if Zimmerman had accelerated to power out of the skid, engine rpms would have been higher than the 2,200 recorded. If the case is appealed, another court will review this data and look into whether police needed to get Zimmerman’s permission to retrieve the EDR information. The EDR itself, however, may not be testifying any further. After the jury carried the cigarette pack-shaped device back into the courtroom it was dropped on the floor. A record was made of the accident in case the EDR no longer works.