TABLE OF CONTENTS I. INTRODUCING THE LEAF II. EV TECHNOLOGY III. CARWINGS A. Limited Availability of the CARWINGS Agreement... B. CARWINGS Consent Pop-Up Screen: An Opt-In Copout? IV. THE FTC'S POSITION ON PRIVACY DISCLOSURES AND PRACTICES A. Validity of CARWINGS Consent Given by the Customer B. Types of Data Collected 1. Driving Behavior Data 2. Location Data 3. EV Functions and Use of Telematics Services C. How Data is Collected D. How Information is Used E. Disclosure of Information to Others F. Owner's Rights in and Access to CARWINGS Driving Data G. Data Security H. Other Entities' Collection of Data Glossed Over by Broad Releases of Liability V. CONSTITUTIONAL CONSIDERATIONS REGARDING CARWINGS COLLECTION AND USE OF EV DATA A. Existing Constitutional and Industrial Climates B. Future Privacy Considerations Regarding Current Technology VI. CONCLUSION
I. INTRODUCING THE LEAF
In December of 2010, foreign vehicle manufacturer, Nissan, released the LEAF, an all-electric vehicle (EV) equipped with a toy box of technology features including a rear-view camera, Bluetooth hands-free telephone system, MP3 audio system, XM satellite radio, USB connection ports for iPod, and steering wheel-mounted voice controls. (1) The ultimate convenience promoted by Nissan, however, is the vehicle's lithium-ion batteries: the owner will never need to set foot in a gas station for the purpose of fueling the automobile. (2) Neither will the owner need to stop and ask for directions. This is because the LEAF embraces technological advances in telematics--a two-way telecommunications system that is built into the vehicle (3)--and GPS navigation. As with many innovative products, consumers must weigh the cost of convenience against how use of the technology impacts individuals' privacy, particularly in terms of how their personal data is collected and used by others. Justice Alito, in penning the recent United States Supreme Court concurring opinion in United States v. Jones, (4) recognized the following trends: "New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable." (5)
Fortunately, this near giving up of one's privacy rights does not have to happen so quickly or consensually. Justice Alito speaks in terms of "many people," not "all people." Therefore, it is the hope of at least some privacy-minded consumers that constitutional privacy and other legal protections still apply. This article, for example, takes a careful look at privacy considerations associated with the technologies and conveniences offered by the 2011 Nissan LEAF. Specifically, this article explores the vehicle's CARWINGS telematics system, global positioning system (GPS), event data recorder (EDR), and really simple syndication (RSS) capabilities. An analysis of Nissan's Telematics Services Subscription Agreement follows with respect to how consumer data is collected and transmitted via EV technologies.
II. EV Technology
Today's vehicles monitor, collect, and store data in a variety of ways, one of them being through EDR technology. Like most twenty-first century vehicles, the LEAF is equipped with an EDR, which preserves a record of data being monitored in relation to air bag deployment. (6) Typically, an EDR will store data for five to twenty seconds, and can be used after a crash to understand how the air bags worked as well as provide information about the accident that triggered air bag deployment. (7) For example, the LEAF records data such as "the direction from which [the vehicle] was hit and which air bags have deployed." (8) EDRs also record a snapshot of data "when a vehicle senses a potential collision," thereby temporarily storing information about the driver's behavior in instances where an accident has not occurred. (9)
Additionally, the vehicle includes a preinstalled GPS navigational system. GPS is a "satellite-based technology that reveals information about the location, speed, and direction of a targeted subject." (10) Similar to portable GPS devices, the owner can save locations including his or her home address, create an address book and plan trip routes. (11) EDRs are not typically connected to GPS systems, and there is no indication that these two devices are connected in the LEAF. However, the vehicle is disclosed as being equipped with additional undefined "electronic modules" that monitor and record data involving the vehicle's motor, batteries, brakes and electrical system. (12) Even though the vehicle owner's manual does not provide further descriptive information about this technology, the "electronic modules" appear to be distinct from the EDRs, and evidently capture behavioral data such as the driving habit and style of the individual operating the vehicle. (13)
A veritable smartphone on wheels, the LEAF also has RSS subscription capabilities, accessible as information feeds through CARWINGS. (14) RSS is a syndicating news format, the acronym for which represents multiple titles such as Really Simple Syndication, Rich Site Summary and RDF Site Summary. (15) Described as a "simple XML-based system," CARWINGS allows users to utilize RSS to subscribe to news feeds that can then be viewed online, through web pages and browsers. (16) There is usually an accompanying RSS icon that can be found either on the page or in the URL window, indicating that the web page can be syndicated and that the feed can be added as a "live bookmark." (17)
Data from the above technologies can be transmitted from the user to Nissan through the vehicle's telematics. The telematics system is a combination of software and hardware installed in the vehicle that "sends and receives information via wireless and landline communications networks" as well as GPS signals. (18) Specifically, Nissan provides LEAF owners with CARWINGS telematics services pursuant to a subscription services agreement. The telematics system has multiple components from which data can be transferred or accessed, including the vehicle's cellular modem, the CARWINGS web-based interface, and a data center operated by Airbiquity. (19) Additionally, there is a proxy endpoint (or destination) associated with LEAF owners who connect their vehicles to their smart phones using iOS and Android applications. (20)
New LEAF owners are already noticing different types of information being collected about them and are piecing this together with the vehicle's capacity to transmit the data to others. One owner, for example, posted a video online in June of 2011 about his locational data being sent to RSS providers. (21) As the GPS tracked the driver's location, speed, and direction, that data was then wirelessly transmitted to RSS providers. Interestingly, the article that features the video contains the following statement from Nissan, purportedly given in response to the article:
Owners have to opt in or agree to share their data every time they sign in. If they don't, then they pass on the benefit as well. They will however, lose any remote control or data logging capability but the choice is in the hand of the driver every time. (22)
This article questions the validity of Nissan's "opt-in" method by evaluating the CARWINGS telematics subscription services agreement. Also, since the RSS testing on the LEAF described in the video occurred more than a year ago, this article provides results for a more recent examination of whether location information can be leaked through CARWINGS in Part IV.G below. (23)
The LEAF's ability to send and receive wireless and cellular transmissions, paired with the types of data that the vehicle is able to collect, raises serious privacy concerns with respect to both personal information privacy and autonomy privacy. Personal information privacy, also known as access-control privacy, includes data about a person such as their name, address, Social Security number (SSN), likes and dislikes. (24) The mere transfer of these types of data to others who are not entitled to the information can impinge upon an individual's privacy rights. As discussed later in the article, Nissan does at a minimum encrypt sensitive information, which it defines as location, credit card information, usernames, and passwords. (25)
Autonomy privacy involves a person's choice in making decisions and engaging in conduct without interference from intrusion by the government or other nongovernmental entities. (26) Once an individual knows or suspects that he or she is being monitored by enhanced surveillance techniques, that person may even go so far as to modify his or her behavior. (27) While an individual may already want to abide by the speed limit for purposes of obeying the law, that person may become even more likely not to speed out of a sense of paranoia, knowing that someone else is privy to that data. "We behave differently when we know that we are being observed ... ." (28) This behavioral reaction essentially strips the individual of his or her freedom of choice. Moreover, knowing or suspecting that third parties have a record of the driver's location data, the individual may think twice about that trip to the mistress's home or a destination that would implicate one's freedom of association.
A. Limited Availability of the CARWINGS Agreement
Once obtained, the customer will notice that the CARWINGS Agreement is …