Ensuring Privacy In the Era Of Electronic Data

EOBRs (electronic onboard recorders) or ELDs (electronic logging devices) are an important part of modern fleet management and will soon become the letter of the law. Yet these devices don't come without fear. Because electronic logging automatically collects detailed information about each driver’s habits, some businesses worry about the possibility of an invasion of privacy.

The federal government is required by law—specifically, the Privacy Act of 1974—to assess the risk to privacy any time it requires collection of potentially personal data. Failure to do so adequately also would leave the agencies vulnerable to tort claims, since the courts have agreed that a right to privacy exists and that those whose privacy is invaded without good cause should receive compensation.

The Federal Motor Carrier Safety Administration (FMCSA) has already conducted an investigation into whether ELDs leave drivers vulnerable to bullying by their employers. The concern is that employers might put pressure on drivers to keep working in unsafe conditions or when too tired to drive safely.

The agency has found that such bullying is, in fact, minimal.

When FMCSA makes its final rule on the use of ELDs, the rule will likely include specific language against harassment and bullying and a clearly outlined grievance process for drivers who have been harassed.

However, privacy is not simply the right not to be bullied—a person’s privacy is invaded whenever his or her information is taken by those who have no good reason to have it. So who does have the right to detailed data on drivers’ habits, and how can the industry limit access to the information to the right people?

Transportation employers do have a right and a responsibility to make sure their drivers do not violate hours of- service (HOS) regulations.

Exhausted drivers constitute a serious public safety danger. Employers can protect their drivers’ privacy by drafting clear policies on who has access to the data under what circumstances. Discarding unnecessary details and destroying records after they are no longer needed are also important steps to protect employee privacy.

FMCSA also plans to stipulate that motor carriers not disclose any ELD data to the agency, or to anyone else, except as specifically required for inspections, compliance reviews, and incident investigations.

After all, ELDs are meant to improve public safety and drivers are members of the public. Their safety includes their right to privacy.