We now live in an age when every turn, stop, speedometer reading, hard braking event, hard steering event and jerky maneuver we make — even every time we start and shut down the engine in our vehicle — may be recorded. Welcome to the EDR Age – the age of the onboard vehicle Event Data Recorder.
Before the dawn of this brave new era, when a driver had an accident the finding of guilt and liability was largely based on anecdotal information culled from that one incident. Now, if an onboard data recorder is present, it can provide a long-term view of driver behavior before each accident, and not just the moments before it, but the hours, the days, even the years prior. So who should care about this intrusion into driving behavior? Let’s look at the stakeholders.
First, there’s the vehicle owner which, in the fleet business, usually means a driver’s employer, who has exposure from two sides. Recorded data about a driver’s behavior – if not acted upon by fleet officials – could result in the employer being found guilty of negligently entrusting and supervising of the driver, and so liable for punitive third-party damages.
On the other hand, the employer’s possession of the data could trigger a lawsuit from the fleet driver on the basis that the employee wasn’t notified that the data was being collected or how how it could be used and never gave his or her consent e to collect it. Underlying such potential lawsuits are these open issues: Who owns the data, the driver or the employer? Who controls its use? And whose interests take priority?
I’ve already named the second stakeholder: the fleet driver. The employee cares because the information being collected reveals his or her personal activities, both on and off the job. The issue becomes hotter if the employee is a member of a union. And, of course, the issue of privacy rights becomes more contentious when data – the exclusive ownership of which is debatable — is used in court or for hiring and firing.
The third stakeholder is the prospective attorney for the plaintiff, who will seek every shred of potential evidence to secure the best result for his or her client (as well as for him- or herself). In fact, I predict that the issue of rights to EDR data will ultimately be determined by this stakeholder’s skill at persuading a judge or jury that it is the interest of jurisprudence that exclusive rights to the data reside neither in the private hands of the employer or fleet driver, but in the public interest.
Of course, the final stakeholder in EDR data is the private driver. Why? Because EDRs are bound to become a common tool for automobile insurance companies to determine policyholder premiums. In the not-too-distant future, this could be every insurance company’s offer: Install the device so your premium can be based on an assessment of how safe a driver you really are, or pay the highest premium.
As for fleet operators, I offer the following advice: if it hasn’t already, your organization should consider creating and implementing policies regarding EDR data, including data generated by global positioning systems (GPS). These new policies need to address the issues of employee notification that data will be collected, what kind of data, what its possible uses may be, an assertion that the employee does not own or control use of the data. It may also be prudent to secure driver signatures agreeing to the fleet’s new recorded data policies.
The Age of the Event Data Recorder is more than approaching us at great speed – it’s already arrived. Not having new policies in place that protect your fleet may may lead to some uncomfortable consequences sooner than you might have expected.