Wiretap Cannot Disable Car’s Emergency System

If your car’s on-board emergency assistance system doesn’t work when you need roadside assistance, maybe you should call the FBI.

That’s because up until a recent court decision barring the practice, the FBI has been able to obtain warrants to listen in on in-car conversations through the roadside assistance devices installed in luxury cars. The problem, the court found, was not the intrusive nature of the eavesdropping but rather that the FBI’s listening disabled the emergency function of the system. In other words, when the FBI had the “wiretap” in place, emergency calls could not be made from the car. And, since the FBI sometimes records, rather than listens live to the conversations in the car, there was no assurance that the FBI would alert emergency services of the need for roadside assistance.

The lawsuit was brought by an undisclosed provider of the on-board service after it had complied with several wiretap warrants. Under the warrants, the on-board service relinquished control of the system to the FBI. Although the wiretap orders had expired, the court entertained the lawsuit noting that it was an issue that could continue to occur but otherwise would be incapable of being decided because the wiretaps were for limited duration.

The on-board system provided not only navigation but also allowed the persons in the vehicle to contact the provider in an emergency by touching a single button. When the button was pressed, it initiated a cell phone call between the car and the provider. When activated, the provider could hear all of the conversation in the vehicle. The conversations that the FBI sought to intercept were not the telephone calls to the provider but rather the conversations that took place in the car itself where the parties in the lawsuit agreed that the occupants “reasonably expected that words spoken between them would be private, not subject to interception or transmission.” However, these “oral conversations” fell under the federal wiretap statute.

The on-board system provider was considered akin to a landlord, custodian or other person who would be required to furnish the technical assistance to intercept the conversations in the car. The problem with the FBI’s surveillance, however, was that when it tapped into the on-board system, it deactivated the emergency call assistance feature. When a court authorizes a warrant under the statute, the order “must specify that assistance be provided ‘unobtrusively and with a minimum of interference with the services.”

In this case, the FBI surveillance completely disabled the system. Because the FBI surveillance meant that all monitoring of the vehicle was turned over to the FBI, the provider could not monitor for an emergency call. Further there was “no assurance that the FBI would be monitoring the call at the time” an emergency message was sent by the occupants. “Also, the FBI, however well-intentioned, is not in the business of providing emergency road services, and might well have better things to do when listening in that respond with such services to the electronic single sent over the line. The result was that the Company could no longer supply any of the various services it had promised its customer, including assurance of response in an emergency,” the court wrote.

As a result, the eavesdropping cannot be done within the “minimum of interference limitation” and no further warrants could be issued for such surveillance.

In re: In the Matter of the Application of the United Sates, for an Order Authorizing the Roving Interception of Oral Communications, the Company v. United States of America, U.S. Court of Appeals, 9th Cir., Issued Nov. 18, 2003, No. 02-15635.