New Statute Enacted Governing Access to Data
Contained in Automobile Event Data Recorders

Session 2006, Chapter 357-G
Approved May 9, 2006
Effective: section 357-G:1,III related to manufacturers: January 1, 2007
Remainder of statute effective July 1, 2006

This statute pertains to the automotive event data recorder or “EDR” (sometimes referred to as a “black box”).

Based on a directive issued to car manufacturers by the National Transportation Security Board, EDRs are installed on almost all new manufactured vehicles.

The National Highway Traffic Safety Administration (NHTSA) has proposed a new rule requiring car manufacturers to standardize black box technology so that data is recorded and stored in the same way and is easier to collect and compare. The NHTSA estimates that seventy percent or more of cars and trucks manufactured in 2004 were equipped with EDRs.

EDRs have been introduced in civil suits to rebut claims of air bag malfunctioning and other vehicle defects where plaintiffs alleged such defects resulted in damages and injury. EDRs raise critical issues including:

1.         Who should have access to the data stored;
2.         Under what circumstances access should be granted;
3.         Whether EDRs are tamper-proof; and
4.         Whether they are resistant to accidental spoliation.

This new statute makes New Hampshire among a few states that have passed a law forbidding any party other than the motor vehicle owner from downloading EDR data, with certain exceptions.

Specifically, the new statute provides a definition of an EDR as a device that does any of the following:

1. Records vehicle speed or direction
2. Records vehicle location data
3. Records vehicle steering performance
4. Records vehicle brake performance, including but not limited to, whether brakes were applied before a crash
5. Records the driver’s seatbelt status
6. Has the ability to transmit information concerning a crash in which the motor vehicle has been involved to a central communications system or other external device when a crash occurs.

The new law also requires that if an EDR exists in a newly manufactured vehicle the manufacturer must disclose its existence in the owner’s manual.

Additionally, if the EDR is capable of recording or transmitting information and that capability is part of a service agreement, then that capability must be disclosed as part of the service agreement.

Most significantly, the only persons authorized to retrieve data from an EDR are the following:

1. The owner, owner’s agent or other person with the owner’s consent;
2. A person who has obtained a court order permitting the retrieval;
3. Any mechanic for the purposes of diagnosing, servicing or repairing the subject vehicle; and
4. Any person attempting to determine the need for or facilitating emergency medical response in the event of a motor vehicle crash.

This last category is apparently to permit services such as OnStar to access data in the event of a medical emergency.

Regards,

Mike Wallenius

603-634-4300
mwallenius@gss-lawyers.com