What’s going on here?

This is a summary of discussion on the Privacy Concerns post between February 6 and May 13. (On that date, the post was closed to further discussion.) It was written by the Regulation Room team based on all the comments people made. This version is a DRAFT. We need YOUR help to make sure that nothing is missing, wrong or unclear.

Important dates:

May 14-22:  Comments can be made here on the draft
May 21-22:  Regulation Room team reviews comments and revises draft
May 23:  Final Summary of Discussion is posted on Regulation Room and submitted to FMCSA as a formal comment in the official rulemaking record.  (May 23 is the last day of the official commenting period.)

Things to keep in mind as you read through the draft summary and make comments:

1. The goal here is to give FMCSA the best possible picture of all the different views, concerns, and ideas that came out during the Penalties/Enforcement discussion.  This is NOT the place to reargue your position or criticize a different one.  Focus on whether anything is missing or unclear, not whether you agree or disagree.
2. Rulemaking is not a vote. FMCSA is not allowed to decide what to do about EOBRs based on majority rule.  (Why? See Effective Commenting).  Approximate numbers are provided in the summary to give FMCSA a sense of the frequency of views, concerns, and ideas.

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Who participated?

This post got 33 comments from 11 users; moderators responded 15 times.

Commenters included primarily people who identified themselves as owner/operators and a few owners of trucking businesses. Several of the owner/operators have a lease arrangement with other carriers. Three commenters stated they had previously used an EOBR, AOBRD, or fleet A group of motor vehicles owned or leased by businesses or government agencies management system. Two commenters identified themselves as members of an advocacy group interested in this rule.

Several consider EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) as inflexible, overly expensive record keepers that raise concerns about privacy and harassment without creating substantial safety benefits to warrant widespread replacement of paper logs.  (Many complained that FMCSA’s own data on trucking crashes show there is no need for the rule.)  Also, several commenters are offended that an EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) requirement means FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) distrusts drivers and is proposing to treat all drivers the same way as it now treats high safety risk drivers.

The main privacy concern was the amount of information collected by EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) and the way this information could be abused.  Many felt that EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) would collect too much information and would be transferred in an insecure way.  (There was some uncertainty about just what data would be collected, especially since current fleet A group of motor vehicles owned or leased by businesses or government agencies management systems collect more data than FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) would require.)  Also, many were concerned about allowing enforcement officials physical access to the inside of the truck and to the truck’s electronic equipment.

One commenter to this post did support the proposal because EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) could help keep better track of the drivers in his/her operation.

Too much information collected. Several commenters are concerned about the types of information collected by EOBRs, believing that such information is not necessary to police HOS Hours of service (Regulations issued by FMCSA that limit the number of daily and weekly hours a CMV driver may drive) compliance. One commenter felt extremely uneasy with the lack of information regarding EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) in general and stated, “[f]or all we know, they could have listening devices installed within.”

One complains that recording vehicle speed would let the “EOBR police” come after him/her for speeding;  when the moderator pointed out that FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) was not requiring EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) to record speed, another commenter objected that it “only requires a little math” to figure out speed once location and time are recorded.  Another commenter similarly objects to collecting location data as unnecessary: He/she is highly suspicious of the motives for collecting such data, theorizing that DOT Department of Transportation might be paving the way for a “vehicle miles tax.”  This commenter believes that any data collection other than what is strictly required for HOS Hours of service (Regulations issued by FMCSA that limit the number of daily and weekly hours a CMV driver may drive) compliance (which he/she identifies as hours on-duty, off-duty, driving, and “no other information”) is an unnecessary expense that will burden small business owners; this commenter insists that “savings” to truckers from collecting other information should not be included in DOT’s cost/benefit estimates.

By contrast, one commenter (a “trucking business” with 7 vehicles/units)  is not opposed to “track[ing] our drivers.”  “We know that drivers can be a liability for smaller fleets because some of them think that after they get done with their assignments the truck is just their personal vehicle. I’d also love to know what route they are taking at all times and be able to easily divert my drivers with available information or even advise them where to get fuel without having to call them.”  This commenter notes that EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) are limited in function as a tracking device compared to other technologies such as cell phones, which track people constantly.  It would take many more features for EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) to act as legitimate tracking devices—none of which DOT Department of Transportation has required.

Potential misuse of data. Commenters are concerned about the misuse of EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) data by both authorized and unauthorized entities.

One commenter (a long haul/short haul owner/operator) worries that EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) would actually cause more danger to truckers rather than increasing safety:  “The availability of the information that will be mandated in the proposed EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule is a treasure trove of information for criminal exploitation.  Even though the information required does not go to the GPS Global positioning system (A space-based global navigation satellite system that provides location and time information anywhere on Earth) grid coordinate level, all a criminal needs to know is the city where a truck got loaded. Shipping locations are well known within the transportation community.  If you tell me the city a shipment came from I can tell you the most likely contents of the load.  Truck hijackers will focus on trucks that have visited cities that ship pharmaceuticals, electronics, copper, aluminum, and other high value loads.  Wireless networks and/or have an external access point are generally not considered secure methods of data transmission.”   He/she makes three recommendations:

“A. DOT Department of Transportation conduct a study to confirm the security of the information from unauthorized users. If a law enforcement officer can read it via wireless or plug-in information, it is not secure. If wireless networks were secure the DOD would not prohibit their use for sensitive communications.
B. DOT Department of Transportation conduct a study to determine the number of truck drivers who will be killed or injured due to criminal exploitation of the security vulnerabilities of the proposed EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) system.
C. If an upgrade in the systems is require to make them more secure, those costs need to be included in the cost of the proposal.”

At least four commenters specifically express concern about government officials potentially misusing the information gathered by the EOBRs.  Mostly these concerns seem related to harassing over-enforcement, although one commenter worries that officials might provide the data to third parties or use the data as a way to monitor truckers beyond what is necessary to ensure compliance with the HOS.  He/she is also concerned that EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) checks could result in law enforcement officials conducting invasive physical searches inside vehicles: “The EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) are nothing more than a tool for law enforcement to use to come into my home away from home.”

One commenter points out that fleet A group of motor vehicles owned or leased by businesses or government agencies management systems record more information that DOT Department of Transportation is requiring, and is worried that this information will also be accessible to official investigators.

One commenter had a different kind of concern:  Paper logs are used by drivers for as records for tax purposes. If EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) replace paper, would employers would have to give drivers copies of their log information monthly or yearly?

Concerns about mechanics of enforcement.  One commenter reports talking with a state highway patrol officer who said they have no software for EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) and so can’t check them. Another commenter expresses concern about damaging the “delicate and expensive” electronic systems in modern trucks by officials “not properly grounding or improperly accessing the data.”  He/she provides a report of a Canadian case where a driver was concerned about possible harm to his truck’s electronic system and asked a law enforcement officer to sign a letter assuming damage liability before accessing a mandatory speed-limiting device. The officer refused and issued the driver a citation for non-compliance.  The trial court dismissed the citation.

Skepticism about safety benefits. In addition to the concern about trucker safety from EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) data falling into the hands of hijackers, several commenters are very critical of the claim that EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) will increase safety, and say that FMCSA’s own data don’t support the rule.  They complain that the rule will impose unnecessary and unjustified costs for little safety benefit.

They argue that driver fatigue, the rationale for strict compliance with HOS, is not the main culprit for truck crashes.  One points to the FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) webinar (Sept. 30, 2010) giving data that crashes have declined and that only 1.4% of trucking accidents are fatigue-related, and complains that FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) is “falsifying its own information to make it seem that new regulations” are needed.  Another also complains that the crash data are being “manipulated” and says it is “well known that about 70% of truck crashes were caused by a 4-wheeler.”  He/she says that the solution is to educate the public on safe driving rather than burden truckers with more costs.  A third says that the data can be found on FMCSA’s own website and this causes drivers to mistrust FMCSA. Other commenters agree that the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule would unfairly single out just some vehicles.

Several commenters argue that EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) are being required for the wrong vehicles—namely, the ones not responsible for the accidents.  One is offended that rules that now require EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) for companies with high safety risk would be applied to drivers who are not unsafe law breakers.   Others express similar views that the proposal does not trust them to be safe drivers and responsibly recognize when they are fatigued.

One commenter points out that EOBRS will not necessarily reach the desired goal because drivers will still have to manually add any change of duty status.

A novel safety point was made by commenters who argued that EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) can actually be used to make drivers drive when still fatigued.  Two recount personal experiences of using a Qualcom system for a carrier employer. Based on data from the system, one driver would be awakened by a dispatcher telling him/her to start driving again because the 10 hours were up, whether or not it was the middle of the night and he/she had gotten enough sleep.  The other reports being awakened by the dispatcher during the 10-hour break to ask how long before the break was over.  Another (who also has used EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) or similar devices in the past) agrees: “I also don’t need the ‘fatigue’ that will be created when the data from an EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) is used to ‘micromanage’ my time.”

“A. Prior to publication of any EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) regulation, the US DOT Department of Transportation must comply and document compliance with all aspects of the FISMA act to achieve system accreditation as discussed in the following paragraph:

‘Once the system documentation and risk assessment has been completed, the system’s controls must be reviewed and certified to be functioning appropriately. Based on the results of the review, the information system is accredited. The certification and accreditation process is defined in NIST SP 800-37 “Guide for the Security Certification and Accreditation of Federal Information Systems’.

B. Compliance with Federal Laws by DOT Department of Transportation is not optional it is mandatory. Additionally, the reason for information security is to protect individual truck drivers from the violence associated with criminal activity associated with the exploitation of vulnerable information by criminals.

C. Once the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) has been certified, accredited, and documented as required by “Guide for the Security Certification and Accreditation of Federal Information Systems”, the DOT Department of Transportation will need to republish the proposed EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) regulation to include all the additional costs associated with information security.”

Concerns about inflexibility of EOBRs. Although not specifically about privacy, some commenters  echo concerns expressed on other posts that EOBRs would be difficult to use and cannot adapt to special circumstances that might occur without the driver’s being at fault or able to control them.  They are worried that an unexpected delay that occurs just as the maximum hours are up would cause the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) to record a violation without providing an opportunity to explain the situation.

Read what commenters have said about their personal experiences relevant to the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule here.