by Bob Barr
Buried deep within the massive infrastructure legislation recently signed by President Joe Biden is a little-noticed “safety” measure that will take effect in five years. Marketed to Congress as a benign tool to help prevent drunk driving, the measure will mandate that automobile manufacturers build into every car what amounts to a “vehicle kill switch.”
As has become standard for legislative mandates passed by Congress, this measure is disturbingly short on details. What we do know is that the “safety” device must “passively monitor the performance of a driver of a motor vehicle to accurately identify whether that driver may be impaired.”
Everything about this mandatory measure should set off red flares.
First, use of the word “passively” suggests the system will always be on and constantly monitoring the vehicle. Secondly, the system must connect to the vehicle’s operational controls, so as to disable the vehicle either before driving or during, when impairment is detected. Thirdly, it will be an “open” system, or at least one with a backdoor, meaning authorized (or unauthorized) third-parties can remotely access the system’s data at any time.
This is a privacy disaster in the making, and the fact that the provision made it through the Congress reveals — yet again — how little its members care about the privacy of their constituents.
The lack of ultimate control over one’s vehicle presents numerous and extremely serious safety issues; issues that should have been obvious to Members of Congress before they voted on the measure.
For example, what if a driver is not drunk, but sleepy, and the car forces itself to the side of the road before the driver can find a safe place to pull over and rest? Considering that there are no realistic mechanisms to immediately challenge or stop the car from being disabled, drivers will be forced into dangerous situations without their consent or control.
The choice as to whether a vehicle can or cannot be driven — for vehicles built after 2026 — will rest in the hands of an algorithm over which the car’s owner or driver have neither knowledge nor control.
If that is not reason enough for concern, there are serious legal issues with this mandate. Other vehicle-related enforcement methods used by the Nanny State, such as traffic cameras and license plate readers, have long presented constitutional problems; notably with the 5th Amendment’s right to not self-incriminate, and the 6th Amendment’s right to face one’s accuser.
The same constitutional issues abound with this new technology, but with the added confusion surrounding what Congress even means by “impaired driving.” Does it mean legally drunk, or perhaps under the limit but still “impaired” to a degree? Would police be summoned automatically by the system in order to make that determination? These are questions that should have been addressed openly and thoroughly during the legislative process, not left to later, back-room negotiations between interested parties other than individual car buyers – manufacturers, regulators, insurance companies and law enforcement.
Ironically, or perhaps intentionally, there also is no detail in the legislation about who would have access to the data collected and stored by the system. Could it be used by police, and could they access this information without a warrant? What about insurance companies, eager to know with what frequency their customers drove after drinking alcohol, even if it was below the legal limit? Such a trove of data presents a lucrative prize to all manner of public and private entities (including hackers), none of which have our best interests at heart.
Adding what amounts to a mandatory, backdoor government “kill switch” to cars is not only a violation of our constitutional rights, but an affront to what is — or used to be — an essential element of our national character. Unless this regulatory mandate is not quickly removed or defanged by way of an appropriations rider preventing its implementation, the freedom of the open road that individual car ownership brought to the American Dream, will be but another vague memory of an era no longer to be enjoyed by future generations.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.