An Overview of Laws Regarding Driver Facing Cameras
The advent of technology has brought us intelligent safety systems and increasing automation designed to effectively regulate complex systems. As the movement continues towards automation, driver facing cameras (also referred to as cabin facing cameras) have made their way into the long-haul trucking industry. These cameras are touted as a tool of choice as fleets increasingly seek to enhance their safety systems and address increased liability exposure.
As with most emerging technologies, lawmakers have quickly reacted to address the implications of driver facing cameras. Most states only allow driver facing cameras to be used when the motor carrier has obtained employee consent, and many require that the use of the cameras be addressed in a collective bargaining agreement.
Additional requirements for usage, such as attending training where a driver is told how the camera will operate in various conditions, and that the data collected by the camera is the property of the motor carrier and can be used for any purpose, have also been imposed by various jurisdictions . These jurisdictions have also adopted stringent rules on data access to ensure compliance with privacy laws.
However, despite all the laws and safeguards, drivers remain wary of having constant surveillance on them while they drive. For these drivers, mounting driver facing cameras on their windshield not only can be an invasion of their privacy, but the position of the cameras takes up valuable real estate, obstructing their view of the road and the dashboard. A driver may be limited in their ability to perform standard driving tasks like looking down at paperwork or adjusting their visor.
Thus, the relatively new technology poses additional challenges to fleet owners, who must ensure that drivers are trained on the benefits of the technology and that they have legal rights to install and use the cameras.
Legal Obligations and Requirements for Driver Facing Cameras
The legal requirements for the use of driver facing cameras varies significantly on a federal/state level and even by jurisdiction. At the federal level, there are no laws mandating the use of driver facing cameras but the Federal Motor Carrier Safety Administration (FMCSA) Advisory Opinion Letter 2012-002 states: "We have reviewed your correspondence regarding the use of in-vehicle monitoring systems (IVMS) in commercial motor vehicles. You ask whether such a system violates 49 CFR 392.80(a), which prohibits an interstate CMV driver from possessing or using a hand-held mobile telephone while the motor vehicle is in motion. In review of 49 CFR 392.80(a), we note that on its face it does not impose restrictions on the use of IVMS in CMVs. However, the 49 CFR 392.80(a) prohibition applies to equipment use by the driver not to equipment installed as a part of the vehicle." Under that advisory opinion letter, the FMCSA stated that "the restriction in 49 CFR 392.80(a) applies to hand-held telephones, not a telephone receiver monitored through an electronic device, nor does it apply to other electronic devices, such as global positioning system (GPS) units." Given this language, such monitoring systems are not currently prohibited by federal law, but there is no federal requirement as to when or why they must be used. Driver facing camera laws vary by state as well. For example, in Virginia, there is a specific law that states commercial motor vehicles cannot have cameras facing the passenger seat and if the vehicle is equipped with a camera in the passenger seat, the driver must be provided written notice that the vehicle is equipped with such camera. In New York, there is no law directly addressing the use of driver facing cameras but under ยง 168 NYS Vehicle and Traffic Law, it is prohibited to own/operate a vehicle with a windshield covered by stickers or other non-transparent materials and equal to or greater than five inches.
Legal Privacy Concerns and Implications
Privacy concerns are closely linked to the implementation of driver-facing cameras, and companies must navigate potential legal risks linked to privacy rights. The right of privacy is specified in the respective national laws of many countries. Countries also have privacy-related laws and relevant prescribed authorities that support additional comprehensive rules of privacy protection for individuals.
In India, the right to privacy was recently reaffirmed as a fundamental right. The Supreme Court of India in K.S. Puttaswamy v. Union of India recognized privacy as a fundamental right. The Supreme Court held that a different aspect of life is protected from "public gaze." Apart from laws governing privacy under legislation such as the Constitution, there is also the Code of Criminal Procedure, which recognizes the right to privacy "with regard to conversations."
In the United States, the scope of the driver facing video camera system creates privacy concerns for drivers and passengers. For truck drivers, the potential impact of driver facing video and in-cab camera is significant. Because the driver is the focus of the video and audio monitoring, it becomes crucial for the driver’s privacy to be protected against invasion. (The public and passenger facing components of the cameras are not covered in this discussion.)
As the System’s market grows and evolves, many behavioral, ethical, and legal implications arise. For example:
Simultaneously, there are legal protections afforded to these individuals such as: Passenger and Employee Consent is essential for any use of the System when focused on individuals, not the vehicle. Any installation of the System requires warning decals explaining System use and seeking permission from occupants of the vehicle. Or alternatively, a sign in the parking lot that is licit will meet the requirements, but should be considered. It is important that consumers are notified if a license allows individual data to be processed and stored.
Additionally, certain laws provide special protection in specific areas. For example:
When the truck is leased, the former owner may be liable for issues that arise after the sale of the truck, if the driver facing video and audio was installed after the sale.
Privacy concerns are not limited to video and audio monitoring. Trucking companies who fit their vehicles with driver facing monitoring approach privacy in a variety of ways. Many companies ask for consent for use and sign a limited non-disclosure agreement with their employees. In a recent case, an employee objected to his employer’s video monitoring policies, and he brought a lawsuit claiming invasion of privacy. The state supreme court in that case ruled on the basis of public interest and ruled in favor of the employer. It is uncertain how other jurisdictions might rule in future disputes.
Benefits and Legal Issues of Driver Facing Cameras
Benefit and challenges of driver facing camera laws depend on the viewpoint of the companies and the employees. Companies experience a lot of value from the technology, and that value is something that they might expect to protect under some or all circumstances.
But the extent of the expectations to protect the driver’s privacy vary. There might be arguments made, perhaps reset in pricing, to indicate that the driver needs to know that there is video of his or her driving performance that can be shared with the company at any time. But the law provides a framework for what companies need to do in relation to how they use that technology, and provides some protections for drivers against how some companies might want to use that technology.
Companies want to keep rates low, and sometimes that means using technology to manage driver performance better. But as that system scales, the costs of implementing and maintaining that system can be significant.
Other possible challenges might relate to the implementation and installation of the cameras, and how that ultimately will affect the company’s pricing. For example, certain technologies are cost prohibitive relative to how many drivers might partake in the technology. If a company has a small fraction of drivers using camera technology, driving behavior data might be more costly to access than if the company had a larger fraction of drivers using camera technology.
Interestingly, the sector from which the law emerges has experienced some of this issue. For example, taxi businesses have been more readily able to capitalize on the rise in popularity of the app-based ride-hailing applications, particularly in metropolitan areas with large populations. For smaller budget taxi businesses, finding a way to compete with the lowering prices presented by the popularity of the new technology has been a challenge. And it has perhaps been particularly challenging for those that have not been able to financially withstand the costs associated with updating taxi technology in order to maintain competitiveness .
This is not to say that these challenges clearly outweigh the benefits. But it should be considered when looking at the law, and when evaluating the potential industry-level scope and applicability of the law.
A potential challenge relates to implementation of the technology. One issue relates to the costs associated with implementation, particularly as to what extent the technology might need to be implemented and installed in multiple locations. Another might relate to how the technology needs to be integrated into the existing record keeping systems. Another might relate to how the technology needs to be integrated into drivers’ schedules and daily routines. The technology would need to be installed into vehicles, and for some companies that technology might require a more significant installation process.
But the costs of installation and implementation might be particularly troublesome to smaller companies that have to think carefully about the overall price of the technology, and whether the installation and implementation costs justify the value proposition offered by the technology.
There also might be some driver privacy protection issues. There are some employers that might find value in the access to the video of how the driver drives, and might want to use that video and that data. Such use might in fact be expressly prohibited by the law. But at this point, companies need to be careful to not overreach when it comes to the use of the video. Ultimately, the concerns relate to when the video is reviewed and how it is reviewed. For example, if there is a safe driving demonstration that releases liability for another driver or another party, how might tapes of the driver’s performance be used. For example, if there is a dispute as to an accident, might the company seek to use the video to support or challenge driver allegations?
There are rules in place that might address the concerns, but companies ultimately have to be careful to not exploit the rights that are in place for drivers.
Future Directions in Driver Facing Camera Laws
As technology evolves, so does the legislative landscape, and the laws surrounding driver facing cameras are no exception. A few key trends are emerging in driver facing camera legislation that will likely shape the future of these devices.
One such trend is the push for increased privacy protections. As more and more jurisdictions grapple with the implications of wide-scale surveillance and data collection, legislation will likely reflect public concern about how this data is used and when it can be accessed. The rapid growth of big data analytics and the potential for misuse of that data also pose a significant risk. It is crucial that any legislation regarding driver facing cameras anticipate these potential pitfalls and include provisions to address them.
The rise of artificial intelligence (AI) is another factor driving the legislative landscape. AI and machine learning are already being used to make sense of the large amounts of data that driver facing cameras generate. However, this also raises concerns regarding bias in these data sets and the algorithms used to analyze them. Legislators must ensure that driver facing cameras are governed by data standards that can minimize these risks and promote accuracy and fairness.
A final trend worth noting is the growing focus on public safety and traffic enforcement through the use of driver facing cameras. As technology improves, these cameras are being viewed as a versatile tool for cities looking to address a myriad of safety concerns. For example, some driver facing cameras have been developed with fully integrated speed enforcement technology or have the ability to identify seatbelt violations. This expanded functionality will likely be an area of future regulation as lawmakers consider how to best use this technology to serve and protect the public.
Overall, the future of driver facing camera legislation is still being written. As technology continues to advance, both in the capabilities of the cameras and the potential uses for the data they generate, it will be essential for lawmakers to keep pace.
Concluding Observations and Takeaways
Throughout this article we’ve explored the emerging and continuously evolving world of driver facing camera technology. When implemented and operated properly, driver facing cameras and telematics can improve road safety, reduce litigation exposure, and provide powerful insights via data analytics. But as with any new technology, there are important legal and regulatory considerations. The applicable laws differ by state, which means that each fleet operator must conduct a multi-state compliance analysis to ensure it uses the technology in a compliant manner. Fleets must also reconfirm this legal analysis in the event that they install driver facing cameras in new states or if a trusted "safe harbor" industry standard is updated. More recently, the Federal Trade Commission (FTC) has entered the fray , sending letters to several technology companies that help fleets obtain, store, and use the data obtained through truck and bus cameras. The FTC’s letters to those companies requested that they implement certain controls and comply with certain guidelines when handling trucking industry camera data. While these letters were not directed at the fleets that use this technology, the FTC actions suggest that some type of government oversight could be on the horizon. Driver facing cameras provide a lot of value when used properly. Even so, the known challenges of implementation, ongoing legal developments, and industry rumors regarding upcoming regulations all suggest that fleets should proceed with caution in this area and ensure robust compliance procedures are in place.