The Constitutionality of Black Boxes 

This topic has popped up in the news here and there as the NHTSA has been considering making a requirement for automobile manufacturers to put "black boxes" in cars. Jim Harper has an op-ed on FoxNews about the topic. Jim concentrates more on the privacy concerns that this brings up, which definitely have merit. Some states are already considering charging a per-mile tax on drivers. Insurance companies will no doubt want you to send in your data to be used to calculate what your premium ought to be. What concerns me is that the data from the black box will be used to convict in automobile related crimes. Depending on the data being collected this could range from speeding to reckless driving, or worse. What I have not seen a discussion of yet, is whether this sort of evidence would be constitutional. Harper's op-ed briefly mentions that a black box has already been used as evidence in New York. Right now, about 1/2 of all cars sold this year have black boxes of varying recording capabilities already installed.

Granted I'm no legal scholar, but I do know how to read. I've read the constitution, and two parts strike me as important here. Those would be the 4^th and 5^th Amendments. What concerns me is that this is not just a piece of evidence that the police can collect after an accident, or when they pull you over. If we looked at it in those very strict terms, then there would probably be no argument. After all, search and seizure of property is perfectly reasonable given probable cause. And a smashed up car on the side of the road would probably constitute probable cause.

My problem is that the government would be requiring me to carry a device, whose primary purpose is to collect evidence to incriminate me if I commit a crime. After all, if the NHTSA has it's way, don't think that you'll be legally able to remove this black box from your car after you buy it. So my question is, doesn't this strike at the very heart of my 5^th Amendment right not to be compelled to present evidence against myself? Isn't this really just an end around the constitution?

Rather than treating a black box like any other evidence that can be collected at the scene of a crime, I would consider it more akin to a wire tap for your car. The government already requires telephone companies to make land lines capable of tapping if a court were to order it. But that means that the information is collected after the order is given. Telephone companies aren't required to record all conversations all the time and turn over previous conversations over after a court order is issued. I'm sure some people think that the NSA does that anyway in sub basement somewhere in Washington D.C... but I really can't speak intelligently about that. How would you feel if the government required that all telephones have a built in recording device that would record all your conversations, and that the police would be allowed to gain access to those telephone calls given "probable cause"? Is there really a difference between this, and placing a black box in your car recording everywhere you go, and how you go there?

Of course the framers never could have imagined the sorts of issues that we face today given our current technology. I'm convinced that the reason there is no right to privacy in the Constitution is because the framers never saw a reason for it. After all, there were no parabolic microphones, wire taps, or anything else back then. The 4^th and 5^th Amendments are really protections against the methods that were available at the time to invade your privacy. Let's make sure that the government doesn't try to use technology as a convenient excuse to end around our constitutional rights.

Update: The op-ed actually mentioned a case in New York, not California. I corrected the above text.