Can You Trust Your Car? - Part 2

A couple of years ago I did a post about a federal case in which the FBI used a car’s integrated telecommunications system to listen in on what people in the vehicle said without their knowing about it.

As I explained in that post, the opinion in that case had nothing to do with the people whose conversations the FBI eavesdropped on, courtesy of the car’s cellular phone system. Instead, it was a civil case: The manufacturer of the car involved was trying really hard not to have to cooperate with the FBI, for what I think are obvious reasons.

Think about it: If you knew the cellular phone system installed in your car as part of a system like OnStar could be used to listen in on your conversations, would you be keen on having a car with such a system? Even if you weren’t planning on using your car to plot criminal activity, you might still find the notion of having someone eavesdrop on you to be unsettling. After all, aren’t cars supposed to be private places?

I found another car eavesdropping case, one that involves the OnStar system (the federal case involved a different system) and deals with a motion to suppress brought by the object of the eavesdropping. The case is State v. Wilson, 2008 WL 2572696 (Court of Appeals of Ohio 2008) and here’s a summary of the facts:

In November or December of 2006, appellant, Gareth Wilson, purchased a used Chevrolet Tahoe equipped with the OnStar system. [He] declined OnStar services. On January 2, 2007, OnStar received an emergency button key press from the Tahoe, as the service had yet to be disabled. The OnStar employee did not receive a response, so the employee contacted the Fairfield County Sheriff's Office and requested emergency assistance be sent to the vehicle's location.

While monitoring the vehicle, the OnStar employee overheard the occupants of the vehicle discussing a possible illegal drug transaction. The employee permitted the Sheriff's dispatcher to listen to the conversation. The dispatcher contacted Deputy Shaun Meloy regarding the OnStar call. Deputy Meloy in turn notified Reynoldsburg Police Officer Joe Vincent who notified Officer James Triplett.

Officer Triplett effectuated a traffic stop of the Tahoe. As Officer Triplett approached the vehicle, he observed furtive movement from [Wilson], the driver. . . . Officer Triplett removed [Wilson] from the vehicle and conducted a search, whereupon marijuana was discovered.

State v. Wilson, supra.

Wilson was charged with trafficking in marijuana, a fourth degree felony under Ohio law. He filed two motions to suppress the marijuana arguing that it was “discovered as a result of a traffic stop predicated on a violation of Ohio's wiretapping and electronic surveillance law, thereby violating his rights against unreasonable search and seizures as protected by the Fourth Amendment to the United States Constitution.” State v. Wilson, supra.

As I explained in an earlier post, the U.S. Supreme Court held – in Katz v. U.S., 389 U.S. 347 (1967) – that we have a 4th Amendment expectation of privacy in the contents of our telephone calls. In other decisions, the Court has held that we have a 4th Amendment expectation of privacy in conversations we hold in private places – like our homes. The government’s surreptitiously listening in on phone calls is known as wiretapping and it’s surreptitiously eavesdropping on face-to-face conversations is known as bugging. Both states and the federal system have statutes that make wiretapping and bugging illegal; the statutes implement the 4th Amendment’s requirements in this respect. (They also, in certain respects, go beyond what the 4th Amendment requires because legislators have on occasion wanted to ensure that we have even more protection in this area.)

Wilson’s motions to suppress therefore raised three issues: Did OnStar eavesdropping violate his rights under the 4th Amendment? If not, did it violate his rights under Ohio’s wiretapping and bugging statute? Finally, was the traffic stop valid?

The Ohio Court of Appeals quickly disposed of the Fourth Amendment issue:

The Fourth Amendment is a restriction against governmental action only. The seizure by a private person is not prohibited by the Fourth Amendment. . . .[T]here is no evidence that any law enforcement officers aided the On Star representative in the monitoring of the conversation. Law enforcement's role was strictly passive in terms of listening to, but not providing the means or controlling the manner of the monitoring. Thus, the Court finds no governmental action in this case and therefore no Fourth Amendment violation.

State v. Wilson, supra.

The court then turned to the Ohio statute. Ohio Revised Code § 2933.52(A) makes it a fourth degree felony to “[i]ntercept . . .or procure another person to intercept . . . a wire, oral or electronic communication.” Since the OnStar system was used to listen in on what people were saying in the car, it didn’t constitute intercepting a wire or electronic communication (wiretapping a phone call or email); instead, it consisted of intercepting an oral communication (bugging a conversation). Wilson argued that what happened to him violated this provision.

The prosecution said what happened to Wilson didn’t violate § 2933.52(A) because it came within an exception created by the next section of the statute. Section 2933.52(B) states that it isn’t a violation of § 2933.52(A) for an “employee . . . of a provider of wire or electronic communication service . . . to intercept, disclose, or use that communication in the normal course of employment while engaged in an activity that is necessary to the rendition of service”. To support its argument, the prosecution offered a transcript of the conversation between the OnStar employee and the Sheriff’s Office dispatcher:

ON STAR OPERATOR: Hi. This is Edwina calling from OnStar Emergency Services. We just had an emergency key press from a vehicle. We're not getting any voice contact at all. They're located on Churchview Drive in Pickering (sic), Ohio. The closest cross street is Finch. The vehicle is at the top of the T at Finch and Churchview Drive. . . .

ON STAR OPERATOR: Great. The vehicle has -- they pressed the button. I cannot get anybody to respond to me whatsoever, so I don't know if it's empty or if somebody is just not able to respond. . . .

ON STAR OPERATOR: Thank you very much for holding. I do have a dispatcher back on line. I will be in the background.

(Inaudible conversation )

ON STAR OPERATOR: Quite an ear full, huh, Dispatch?

SHERIFF'S DISPATCHER: Right. We're monitoring Reynoldsburg Police right now.

State v. Wilson, supra. After the Sheriff’s Dispatcher mentioned the police, the Onstar employee “communicated the following to the vehicle: `ON STAR OPERATOR: This is Edwina with OnStar Emergency Services. Police have dispatched to your location at Spring Run and Reynoldsburg. I will be disconnecting. Please know we are here whenever you need us.’”

The prosecutor said the OnStar person listened in on what people were saying in the car and shared it with police as part of performing an activity necessary to OnStar service, i.e., ensuring the occupants of the car were safe. Wilson argued that the exception the prosecution was trying to invoke shouldn’t apply because he didn’t have a contract with OnStar. The court disagreed: “It is uncontested that someone other than the OnStar employee initiated the contact as the `panic button’ had been activated. Clearly the occupants of the vehicle initiated the contact and failed to respond to the OnStar employee.” State v. Wilson, supra. So Wilson lost on the second issue. . .

and on the third issue: The court found that the OnStar information gave the officer probable cause to stop the car to be sure everything was okay. It also found that the officer’s observing a “questionable license tag” on the car (I don’t know what that’s about) further supported his reasons for stopping it. So Wilson lost on his motions to suppress. His no contest plea on a lesser charge (which got him 60 days in jail and 5 years of community control) stand.

I’m still waiting for a real 4th Amendment challenge to the use of OnStar . . . a case like the federal case I wrote about before, in which law enforcement officers get the service to let them listen in on conversations in the vehicle. As I explained in that earlier post, it seems to me that should be a 4th Amendment violation . . . though I can also see the argument that you assumed the risk of being eavesdropped on by having the system in your car.