Ninety-nine percent of registered vehicles in the United States are equipped with a little-known device: an event data recorder (EDR).
Usually embedded beneath the carpeting underneath the driver’s seat,
these devices continuously measure information on a car’s speed, braking, acceleration, angular momentum, and other similar data.
This information is generally not retained in permanent storage unless the car is in an accident, in which case the EDR will permanently save the data for the five seconds preceding the accident.
In the event of an accident, law enforcement can use data saved on an EDR to reconstruct the facts of the accident and support criminal cases brought by the state for charges such as involuntary manslaughter or driving under the influence.
To date, five state court systems—yielding six appellate court opinions—have ruled on what restraints the Fourth Amendment imposes on law enforcement efforts to obtain EDR data.
The opinions feature an astonishing degree of variation on the threshold question of whether the Fourth Amendment protects EDR data at all.
The Fourth Amendment limits the government’s ability to conduct a “search” or “seizure.”
Thus, for the Fourth Amendment to protect EDR data, it must be a “search” to download EDR data.
Current doctrine provides two methods for determining if a search has occurred: the Katz test
and the trespassory test.
Applying this doctrine, two courts concluded that downloading EDR data does not constitute a search.
The other four courts to consider the issue came to the opposite conclusion but followed dramatically different analytical frameworks to arrive at their respective holdings.
The divergence in results highlights the difficulty in applying current Fourth Amendment doctrine in the digital age, and it draws particular attention to three difficulties in the current doctrine: the subjectivity of the Katz test, the unpredictability of the Katz test, and the lack of clarity on the relationship between the Katz test and the trespassory test. Many scholars have criticized the Katz test, seizing on the test’s “ambiguous meaning, . . . its unsuitability for judicial administration, and its potential circularity,”
in addition to lamenting the subjective and unpredictable nature of the test.
Drawing on such arguments, in his dissent in the recent case Carpenter v. United States, Justice Gorsuch proposed discarding the Katz test in favor of a strict reliance on property rights to determine what constitutes a search.
Under this approach (which this Note refers to as the strict property test), courts would determine if a search occurred by “ask[ing] if a house, paper or effect” that the government sought to access is “yours under law.”
This Note analyzes whether the strict property test actually offers a less subjective, more predictable alternative to current Fourth Amendment doctrine by applying the strict property test to the issue of EDR downloads.
Ultimately, this Note argues that the strict property test, as currently formulated, does not in fact offer a less subjective and more predictable framework for determining whether a Fourth Amendment search has occurred. Section I.A summarizes what an EDR is, how it works, and what it is used for. Next, section I.B.1 provides a review of the relevant current Fourth Amendment doctrine. Section I.B.2 describes the facts and holding of Carpenter and then explains the contours of Justice Gorsuch’s proposed strict property test. Section I.B.3 describes federal laws and regulations specifically governing EDR data, and section I.B.4 does the same at the state level. Section II.A describes the facts and holdings of the state court decisions that have addressed the application of the Fourth Amendment to EDRs, and section II.B details the rationales each court relied upon in reaching their respective decisions. Section II.C reviews the problems with current doctrine that are highlighted by the state court decisions. Section III.A then analyzes the issue of EDR data downloads under Justice Gorsuch’s proposed approach. Section III.B compares the strict property test analysis with analysis under current doctrine. Drawing on this comparative analysis, section III.B concludes that significant work remains to develop Justice Gorsuch’s strict property test as a superior alternative to the current framework, and it suggests a number of relatively minor doctrinal adjustments that can address the problems raised in section II.C.