But road crash investigations by the police also have the goal of pursuing traffic violations?
Orben: Punishment of a traffic violation in the form of a fine or imprisonment has two objectives. As so-called specific deterrence, it is directed at the offender and says: “You made a mistake or deliberately violated traffic regulations – don’t do it again.” On the other hand, it is directed at all road users as a more general deterrence: “Be careful that this doesn’t happen to you, too.” Both objectives have the goal to prevent traffic violations that have been proven to lead to serious crashes – not to rip off citizens.
In times of increasing digitization of the transport sector, how does accident reporting typically proceed in Europe today?
Orben: Connected vehicles are already on the roads in a borderless Europe, and there will also be more and more automated vehicles in the future. In the event of traffic accidents, the police in all countries must be able to use simple measures to secure digital traces such as vehicle data. And this need does not only concern the future. Even today, accidents can often no longer be fully resolved without reading out the data memories. I’m talking about, for example, accidents in which drivers claim that an accident was caused by malfunctions in driver assistance systems. So we urgently need further digitization of traffic accident recording. This also requires the European police forces to be digitally upgraded – efforts to this end are already underway throughout Europe.
In that case, the draft of the new EU Data Act must suit you well. Is it a suitable lever for getting the data you need?
Orben: The EU Data Act is intended to ensure data access for the private and public sectors and to set incentives for data sharing. In the current version of the Data Act, access to data for criminal prosecution is still excluded in Art. 16(2). However, if the traffic violation that led to an accident is of criminal relevance, then the principle of legality requires the police to initiate prosecution measures. Against this background, access to vehicle data in road crash investigations must also be permissible for criminal prosecution – the draft version of the Data Act must therefore be adapted accordingly. As a whole, however, the EU Data Act is a viable approach to regulating the data access necessary for the police to perform their duties.
What can the Data Act do in terms of data access?
Orben: The Data Act obliges product manufacturers – and therefore also vehicle manufacturers – to ensure data transparency. Users shall have easy access to data generated by the product, in this case the vehicle. Users must also be informed about how they can gain access to the data. This means that an important prerequisite has already been met: We must create a simple and concrete way to access the data. This path should also allow sovereign authorities such as the police to gain access if this is necessary to fulfill their duties.
What might this path to data access look like?
Orben: The problem of access indicates a need for regulation. A solution that provides direct access to the driving data not only for the vehicle manufacturer but also for a neutral and independent body would be helpful. Authorized data users, such as the police, can contact this body and receive the data they need to perform their official duties. In practice, this could mean that the police request the stored driving data from the authorized body as evidence for investigating traffic accidents, and receive it in readable plain text.
What restrictions currently stand in the way of using data from motor vehicles?
Orben: At present, vehicle manufacturers have quasi ruling knowledge. In investigations – and now I can only speak for police tasks in the traffic sector – the vehicle manufacturers have to be asked for benevolent cooperation, usually on the basis of decisions by the public prosecutor’s office or the court. There is no regulated procedure via a central, independent body that supports the investigating authorities. As a rule, experts are called in to process the data provided in a wide variety of formats by the vehicle manufacturers, and use it to draw conclusions about the accident or its cause.
Do your colleagues in Europe already have experience with data queries when automated vehicles are involved?
Orben: Our ROADPOL members are increasingly reporting data queries that have been more or less successful. We sometimes have an uneasy feeling and concerns about whether data supplied by vehicle manufacturers is really the unaltered data generated by the vehicle. After all, vehicle malfunctions could also be the cause of an accident, which the manufacturer understandably might not want to disclose. This aspect makes even more clear why driving data must be stored directly with an independent body. Storing the data solely with the manufacturer interrupts the chain of evidence.
Will Big Brother always be sitting in the car with the possibility of sovereign data retrieval in the future?
Orben: We’re talking about data access in sometimes serious traffic accidents. The police have a concrete suspicion and already know the suspect, i.e. the driver of the vehicle involved in the accident. There is a very high and very concrete presumption of finding accident-relevant data. The time frame is also very concrete – usually five seconds before and 350 milliseconds after the crash are sufficient for accident reconstruction. So there is no question of Big Brother secretly and arbitrarily monitoring all citizens without suspicion.
Wouldn’t data be a fine thing for optimizing traffic monitoring?
Orben: As far as I know, there are currently no intentions or even demands in Europe to collect data independently of an accident incident, for example for traffic monitoring purposes. From the European Roads Policing Network’s point of view, we want to punish traffic violations – that is our job and serves road safety. But not at any price. We understand that there must be clear, restrictive provisions for constitutional reasons.