Private Matters

The place: Montreal. The year: 2001. Driver Eric Gauthier’s car collides with another, killing its driver. Gauthier survives and he’s the only witness.

Gauthier tells police that the other driver was speeding. However, the event data recorder in Gauthier’s car — the black box — lays out a different story. It reveals that it was Gauthier who was travelling too fast when the accident occurred. Most automobile black boxes record road speed, engine speed, whether the brakes are applied, and the position of the throttle when the airbag is deployed, as well as whether the driver was wearing a seatbelt.

Gauthier’s lawyers argued that extracting data constituted an unreasonable search or seizure and violated his privacy rights. The black box was intended for diagnostics, a way to determine what caused the car’s air bag to activate. It was not designed as an accident reconstruction tool.

Still, the court allowed information from the vehicle to be entered into evidence in Gauthier’s trial. It helped prosecutors convict Gauthier of dangerous driving.

Black boxes — or Electronic Onboard Recorders (EOBRs) and Global Positioning Satellite (GPS) devices with transmitters — can be handy things.

Put a GPS on a school bus and you can tell when the bus is approaching so your kids don’t have to wait outside in the rain.

Embedded in a cell phone, it can pinpoint the exact location of your 911 call. GPS chips are getting so small and cheap to produce that manufacturers foresee tiny devices for key fobs or wallets.

But collecting and using information is precarious stuff, especially when you’re an employer in Canada.

Following a breadcrumb trail of GPS coordinates, you not only can track your trucks, you can monitor the behaviour of the guy driving it. It’s hard to know, without legal precedent, whether you can do both at the same time.

But there are some hints.

In a 2003 decision, the federal Privacy Commissioner said cameras installed for the purpose of monitoring the security of a yard cannot be used to discipline lazy dockworkers without violating their rights under the federal Personal Information Protection and Electronic Documents Act. The PIPED Act, as it’s known, governs how employers can use information they obtain about their workers — everything from drug test results to safety violations.

If you track your drivers, make sure you’re
not breaking Canadian privacy rules

Likewise, if you install a device to track your trucks so you can tell customers where their freight is, and it shows that your driver spent two hours at his girlfriend’s house instead of at the customs warehouse where he said he’d been delayed, you probably can’t punish the guy.

Your driver may be abusing company time and resources, but disciplinary action may contravene the PIPED Act because the way you learned about his actions was incidental to your original intent: to track the freight.

Even if the driver consents to having his movements monitored, the PIPED Act says employers must make sure information about his whereabouts isn’t used for illicit purposes; e.g. blackmail so the wife doesn’t find out about his girlfriend.

Labour unions are addressing the issue in collective bargaining. Appearing before an arbitrator in Saskatchewan, a union argued that the use of GPS devices on company trucks constitutes “employee surveillance,” an unfair labour practice according to its work agreement. The trucking company had to make its drivers aware of the tracking equipment and state that it would be used only for fleet management and customer service, not for monitoring driver behaviour.

The issue is becoming complicated for trucking companies that operate in the United States and use freight-tracking information to populate electronic hours-of-service records.

Last fall, the U.S. Federal Motor Carrier Safety Administration (FMCSA) said it might amend its hours of service rules to permit or even require EOBRs. (The agency was set to release a proposal this month, but because of impending challenges to hours-of-service legislation, it recently announced it would have to put the EOBR agenda on the backburner until at least May 2006).

In light of the PIPED Act, you may need a device that’s dedicated to monitoring work hours instead of one that automates vehicle tracking, fuel tax reporting, or records unsafe driving.

In Canada there is little precedent on how data from the vehicle should affect your expectation of privacy.

In North America, only California has established rules on black box information. The state requires the disclosure of the existence of such devices to vehicle owners and does not allow information to be retrieved without consent or a court order.

It’s important to remember that the PIPED Act protects the rights of individuals. It does not extend to companies.

Imagine renting a cube van from a company that used GPS to track your speed and charged you $150 every time you exceeded a speed threshold for a two-minute span. It happened with a car rental agency in Connecticut. Or imagine if they kept a database on where that vehicle stopped — which motels, restaurants, fuel stations, etc. — and sold that information to a marketing company.

As an individual, the PIPED Act would restrict those activities, but as a company, your best protection may rest with non-disclosure agreements drawn up by the same group of lawyers that can help you draft personnel policies with respect to the PIPED Act.

When you need help finding your way, GPS and other onboard data devices are invaluable guiding hands. They also require a deeper appreciation and understanding of how the data can legally be used, especially if you’re an employer.

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