© General Motors
By Amanda Brings
Owners of the 2015 Chevrolet Corvette beware: it may be illegal to activate the vehicle’s Valet Mode in certain states. The Corvette’s Valet Mode, an industry-first, has been advertised by GM as a “baby monitor for your baby” and a way for owners to monitor “valets behaving badly.” When activated, Valet Mode disables the car’s infotainment system, records live video, and locks the storage compartments. The system’s legality has been brought into question, however, because of its ability to capture in-car audio along with video. Indeed a number of states, including Washington, have privacy or wiretapping laws that require the consent of all parties to an audio recording. Other states with this requirement include California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, and Pennsylvania. Thus, owners who use the feature to record unsuspecting valet drivers in one of these states could potentially be in violation of the law.
Washington’s Privacy Act, RCW 9.73.030, forbids public or private persons or entities from intercepting or recording any “[p]rivate communication transmitted by telephone . . . or other device . . . without first obtaining the consent of all parties in the communication.” Under the Privacy Act, consent is considered to be obtained whenever one party has announced to all other parties engaged in the communication “in any reasonably effective manner” that the communication is about to be recorded. Although the Privacy Act doesn’t define a private communication, in State v. Modica, 164 Wn.2d 83 (2008), the Washington Supreme Court held that a communication is private (1) when parties manifest a subjective intention that it be private, and (2) where that expectation of privacy is reasonable.
Thus, to ensure the legality of the use of Valet Mode in Washington, GM could simply disable the audio recording capability altogether or reprogram the system to include an announcement to the valet driver advising of the in-car audio recording. Such an announcement or warning would probably defeat any expectation of privacy the valet driver could arguably have in the vehicle.
Indeed, just last week the automaker sent out a letter to its dealerships indicating that it will be making such an adjustment to its system. The letter advised the dealers that they must warn new owners that they should refrain from using Valet Mode until an update takes place. The letter further advised the dealerships to warn new owners that, if they do choose to use Valet Mode, they must notify any occupants of the vehicle that they will be recorded and obtain their consent to the recording.
Fortunately, it appears GM should be able to easily update Valet Mode so that the technology complies with federal and state laws. This case, however, highlights the undeniable intersection of technology and law. In the process of creating new and innovative technologies, companies and inventors must be aware of both the federal and state laws relevant to them. Overlooking legal regulations creates the potentially costly, and certainly embarrassing, possibility that a company will have to update or redesign the device entirely.
Washington Journal of Law, Technology & Arts 