Congress will make your car spy on you

You have the right to remain silent, but your car doesn’t know that. And soon, thanks to a new provision in the trillion-dollar infrastructure bill President Biden signed into law last month, your car will be used against you in a court of law. 

Under this long-ignored provision, carmakers will be required to start monitoring drivers by 2026 using unspecified technology to search for signs of drinking. Let’s be clear:

Drunk driving is deadly. America’s driving fatality rate is one of the highest among wealthy countries, and much more is needed to keep the roads safe. But not only is this sort of surveillance mandate invasive, biased and ultimately unconstitutional; it won’t work.

Under the bill, lawmakers can choose from any number of technologies on the market to comply. Perhaps your car will require you to use a breathalyzer to turn on. Or maybe attention tracking AI (artificial intelligence) will look for signs of distraction. Or maybe we’ll be subjected to even more invasive systems that measure our vitals in real-time.

The only parameters laid out by Congress are that the technology must “passively monitor” either driving performance or the driver’s blood alcohol concentration. Here’s the problem: None of the technology is up to the challenge. Breathalyzers are frequently found to be woefully inaccurate, and they require constant maintenance and calibration. Some of the more novel solutions, which rely on new forms of AI, are poised to be far worse. 

We’ve already seen what happens when we subject millions of Americans to attention tracking AI: the software discriminates. Students with physical disabilities faced a flurry of false allegations of cheating. Disability-specific movement, speech and cognitive processing was flagged as suspicious behavior. If we use AI to monitor for drinking, we’ll end up punishing drivers whose bodies simply move differently, in a sense criminalizing their disabilities.

AI systems could also easily replicate the sort of racial bias that has become synonymous with other forms of AI, such as facial recognition. There’s no technical reason why facial recognition should be more error-prone for Black and Hispanic individuals, but it consistently is, the technology warped by the countless design decisions made when training the artificial intelligence and deploying the associated software. 

The risk is even more acute with driving AI, given the racist history of traffic stops in America. An automaker that trains its new surveillance tool with data from historical traffic stops will smuggle in the bias at the heart of American traffic stops. Essentially, the algorithm will learn to do what some human police officers have done for decades: punish drivers for “driving while Black.” 

American police stop and search Black and Hispanic drivers more often than white drivers. In major U.S. cities, Black drivers are three-to-five times more likely to be stopped by police than white drivers.

But while it may be impossible to develop a driver surveillance tool that doesn’t discriminate, it will be incredibly easy for habitual drunk drivers to circumvent the technology. A driver can easily tape over a sensor, have a passenger blow into a breathalyzer or do any number of other things to disable such technology. And while Congress can mandate that automakers install the devices, there’s absolutely nothing to prevent drivers from uninstalling them before they take the cars home from the dealership.

Even when the technology does work, the results won’t stand up in court. That’s because all of the data collected by these new devices will be tossed out as an unconstitutional search. Congress couldn’t mandate that the phone company install a wiretap in every American’s home. It can’t require every person to carry an ankle monitor to track their movements. And it can’t monitor our health data every time we get behind the wheel, certainly not without a warrant.

Not long after the bill goes into effect, we will see prosecutors trying to use these recorders in court, and we will see them fail. This would be a heartbreaking tradeoff between our rights and safe roads if the tech worked or if this were our only option, but it’s not.

Investing in public transportation, one of the safest ways to travel, gives people reasonable alternatives to driving. Traveling via public transportation is 10 times safer per mile than traveling by car. Safe ride programs also provide the public with options and raise social consciousness around the issue. Graduated driver licensing systems, which initially restrict the driving privileges of new drivers, reduce teen crash and mortality rates. And the root issue, substance abuse, can be addressed by funding treatment programs that have been proven to save lives. All of these options offer more promise than spy cars.

These low-tech alternatives not only work without the invasiveness of new car surveillance, but they have another very important advantage: They actually work.

Albert Fox Cahn (@FoxCahn) is the founder and executive director of the Surveillance Technology Oversight Project (S.T.O.P.), a New York–based civil rights and privacy group, and a visiting fellow at Yale Law School’s Information Society Project. Nina Loshkajian (@ninaloshkajian) is a D.A.T.A. Law Fellow at S.T.O.P. and a graduate of New York University School of Law.