Turning a New Leaf: A Privacy Analysis of CARWINGS Electric Vehicle Data Collection and Transmission
Svarcas, Francesca, Santa Clara Computer & High Technology Law Journal
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. …