The last time you stopped for some fuel, a pint of coffee and a phone call, you left a footprint that could come back to haunt you if you’re not careful.
Several systems – including the fuel card you used to buy diesel and, if you have one, the GPS tracking system on your truck – recorded your location and time. The computer in your truck engine noted your idle time and how hard you braked coming to a stop. Even your bank card purchase of coffee was stored.
“I don’t think most truckers realize what kind of evidence we create when we’re on the road,” says trucker Howard Glass.
Others do realize. The U.S. Department of Transportation is increasingly using electronic records to prove log book errors, to punish cheating truckers and to put their companies out of business. Pit-bull prosecutors in truck-related accident cases are mining the same expanding database.
The prospect of electronic onboard recorders has alarmed truckers and fleets because of privacy concerns, yet much of the information such devices would record is already available through other sources. This electronic trail you’re leaving makes you vulnerable if your activities ever get put under the microscope. And there’s little you can do to protect yourself from an investigation.
“With science and technology, there are more avenues for log book verifications,” says plaintiff’s attorney Roger Braugh Jr., a partner with Watts & Heard. The small Texas law firm has collected more that $50 million from truckers and trucking companies in accident liability cases by proving that truckers weren’t where they said they were.
“In 100 percent of our cases, there have been log book violations,” Braugh says. “If there are records, we can get them. I don’t think truckers can tell a lie and get away with it if you have a competent plaintiff’s attorney on the other side.”
Every time you stop for diesel, you create a record if you pay for that transaction with a credit or fuel card. Just as you might keep the receipt for reimbursement or tax purposes, your credit or fuel card company has generated an electronic receipt as well. The same is true if you pay for other items with a bank card or credit card.
But many other records are created throughout every trip:
Weigh stations record truck ID number, time, driver’s name, carrier, kind of load, condition of the vehicle and any infraction. Eventually, all this ends up in a federal database, available to enforcement agents further down the road.
Mobile inspections create the same records as weigh station inspections. These records will eventually be uploaded instantaneously, enabling law enforcement agents to track the movement of a particular truck.
PrePass and Norpass record information even if you get a green light. In the case of PrePass, that information – such as truck number, time, location and date – is kept for at least 30 days.
Toll booths record the time and transponder number of a vehicle. In a database, this information can be matched with billing information.
Qualcomm and other satellite communications companies record a variety of information, depending on the client’s specifications. The systems can also record messages sent from drivers.
Engine computers record speed, braking and other information about a driver’s habits.
Cell phones create records of times, dates and locations, via cell towers used.
Such information remains private – until someone has a strong reason to look through it. Most of the time that someone is the U.S. Department of Transportation, which uses such information during compliance reviews or after a major accident. Litigants ask for and receive this information all the time in lawsuits.
The DOT last year charged a large fleet with 397 hours-of-service violations in 2001 when the agency used Qualcomm records as supporting documents to verify logs in a routine compliance review. According to the fleet’s appeal, Qualcomm documentation used by the DOT does not constitute a supporting document because the fleet “did not use this data to verify information recorded on the driver’s record-of-duty status.”
Qualcomm, too, says such use is bad government policy. “If you use electronic records to audit paper logs, you’re going to find discrepancies,” says Marc Sands, a Qualcomm vice president and division counsel. “Human entry is never going to match electronic data. We need good policies on protecting privacy.”
The DOT disagrees. “Very, very rarely do we look at those kinds of records,” spokesman Dave Longo says. “Only when a carrier is unable to produce other records to verify their log books, do we go to other sources. If they’ve got everything in order, we shouldn’t have to look at those records. If they don’t, and they track by GPS, then we’re going to look at those records.”
The DOT will use any information available to enforce the law and ensure safety, the agency says. Besides, Longo says, “Most carriers that claim to run by the rules shouldn’t be concerned.”
The duration of data storage varies, but is often limited to a billing cycle. Qualcomm keeps its data for only a few days unless a carrier’s contract specifies otherwise. But many carriers maintain their own copies, which the DOT can access come compliance time.
Qualcomm records are one thing Braugh says he will subpoena in a typical case, along with toll receipts, Comdata fuel receipts, cell phone records, credit card receipts, personnel files and fuel receipts. Many truck stops do not print the time and date on their fuel receipts, but unless cash is used, a record is generated by the fuel card or credit card company, Braugh says. If the trucking company doesn’t have a copy of the record, the vendor providing the service will. Such companies are compelled to hand over data when subpoenaed.
It doesn’t stop there. Watts & Heard has even retrieved engine records to decipher rpm and truck speed before a crash. “It’s best not to be a liar when you’re also a witness,” Braugh says. “As pervasive as log book violations are, they give me and my clients a leg up in the courtroom.”
When a driver uses a transponder to bypass a weigh station, a report is created, although very little information is gathered, says Dick Landes, president of Help Inc., administrator of the preclearance program PrePass. “No information related to the driver is collected,” he says. “We retain the basic information for the billing cycle.” Still, for about 30 days, that information is out there for prying eyes.
There’s little you can do about all the electronic data you’re creating. You could spend only cash, says the Privacy Foundation’s workplace surveillance expert, Andrew Shulman. “But that’s not practical,” he says. And it wouldn’t change the other data-gathering situations.
“Is there any way to avoid all this electronic surveillance?” asks John Collins, an expert in transportation information systems and privacy. “The answer is probably no.”
But for the worker who chose to become a truck driver for the independence and the thrill of running his own business, the stakes are higher. Collins says the labyrinth of regulation and the evolution of technology leave most truckers only three choices:
“Run lawless, and it’s only a matter of time before you get caught. Run totally lawful and be uncompetitive. Or live in that gray area, and God forbid there be an accident and a reason for someone to look at the records.”
“I don’t think most truckers realize what kind of evidence we create.”
– Howard Glass
BLACK BOX STAYS EVERGREEN
The growing availability of electronically documented log-type data doesn’t mean the prospect of onboard recorders is going away.
Although the Federal Motor Carrier Safety Administration’s plan to revamp the 60-year-old hours-of-service rule is stalled, the controversial proposal to require electronic onboard recorders is anything but dead.
Even if the agency’s final rule omits the so-called black boxes, other governmental bodies are pushing for their adoption. The National Transportation Safety Board has asked for such a mandate, and the California Legislature almost passed a bill in 2001 requiring them on trucks.
Although the FMCSA tried to assure truckers and carriers that such devices would record only the same data as a paper log book, the discussion rankled owner-operators and privacy advocates.
“The idea that you shouldn’t have anything to hide isn’t a reason to surrender your rights,” says Jim Johnston, president of the Owner-Operator Independent Drivers Association. OOIDA led the fight against onboard recorders, which have received lukewarm support from other groups, including the American Trucking Associations.
Truckers worry the government will become “an electronic eye looking at drivers all the time,” says owner-operator Tim Trotter. “How would you like to have someone electronically monitoring you when you’re in your bedroom or in your house? Recorders are much more intrusive than the current log because there’s instantaneous access to information. It’s not just the fact that you’re generating the information, but it’s what are they going to do with it. It’s like a big gun pointed at your head.”
“For Americans in general, privacy is a core belief,” says Tim McCrary, an owner-operator with two trucks leased to CRST. “People have fought for centuries to maintain that value.”
John Collins, president of Mobility Technologies in Philadelphia, likens the recorder to an income tax audit. “It’s one thing to hand in all your receipts to tell a story. It’s another thing if the government is there processing all your credit card records to see if there’s something you didn’t report to the feds.”
Activities in a person’s home are considered private. The FBI can’t use a wiretap, for example, without getting permission. Privacy advocates say use of an onboard recorder should be regarded similarly. “To be monitored 24 hours a day is too much,” McCrary says. “No other industry in the country has that kind of monitoring.”
Not exactly, notes Andrew Shulman, an expert in workplace surveillance with the Privacy Foundation. “Many nurses wear badges that track their movements in a hospital,” Shulman says.
Even so, Shulman concedes that intensive surveillance of truckers could be unfair. “If the issue is safety, shouldn’t all drivers be monitored? How many automobile fatalities occur every year? Maybe we should have sobriety checkpoints every 10 miles.”
The larger, less sensational story is that all Americans are being more closely watched, Shulman says. The only time they notice is when an incident prompts someone to investigate records.
“People who use ATMs are videotaped,” Shulman says. “People who go to the airport have their faces scanned. It’s not as though there are 10,000 people in a room looking at ATM images. No one looks until they care.”
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