Watch where you drive!

Progressive will announce its TripSense trial in Minnesota on Aug. 24. Customers who sign up will get a device the size of a Tic Tac box to plug into their cars. The device will track speed and how many miles are driven at what times of day. Every few months, customers would unplug the device from the car, plug it into a computer, download the data and send it to Progressive. Depending on results, discounts will range from 5% to 25%.

This tiny little idea seems to have driven the usually-sensible Volokh into a fit of insanity -- sufficient that he claims to like the idea. Hopefully it will be brief. Why? Because this is a really bad idea.

Since he's been blogging about slippery slope arguments, I'm going to characterize this proposal as not so much a "slippery slope" as a sheer cliff. The problem is that once any particular company keeps records of where a particular car (that they insure) is, those records are available to anyone who can come up with a pretext for a subpeona. The government doesn't need to detail it's goons to keep track of every human being in the country; they can just ask the insurance agencies to hand over the information that insurance agencies have already collected. And that's just the beginning; non-governmental agents are similarly empowered.

Consider the case of a husband or wife who thinks their spouse has been unfaithful. Can they examine the records from the insurance company on their bill to see where the car has been driven? After all, they probably co-own the car and are insured under the same policy -- odds are they could get their hands on the records since they are being billed from the records. If not, what about during the resulting divorce proceedings?

Now, if you have logged GPS data in any kind of detail, you have the ability to derive speed from that information. For most city driving, that calculation is going to turn out to be lower than your actual driving speed, due to traffic lights and the fact that you aren't really traveling in a straight line. But on highways you can get a reasonably accurate picture of speed from a sample as rare as once every five minutes. And if your speed is higher than the speed limit, your insurance company will know and raise your rates whether you got ticketed or not. For that matter, how long do you think that the government would be able to resist using that same source of data to issue automated tickets? Issuing speeding tickets is already considered a revenue source.

Even if such a device were to save insurance companies a substantial amount of money, the social costs in terms of privacy would be tremendous. And that's not something that maybe happens in the distant future; it's something that happens as soon as a single insurance company starts collecting the data. In fact, it might already have started; have you questioned what OnStar is doing with the GPS data? The FBI has already used this technology to spy on customers, and the courts only shut them down because they couldn't do that without disabling the service for the people in the vehicle.

Just one more reason never to buy a car with OnStar: future versions of their devices are likely to "fix" this "bug" for the convenience of law enforcement. Like I said, it's not a slippery slope, it's a sheer cliff, and we're already scrabbling at the edge. Insurance companies offering this technology to customers will send us over that edge and off the cliff.

I suspect that Eugene Volokh would argue that OnStar is a voluntary choice by a car buyer, and customers with privacy concerns do not have to buy cars with the system. He would be right as far as that goes, but it doesn't go far. You can choose not to buy a car with OnStar so long as they are making cars that don't include it, and your insurance company will agree to provide coverage to you without that information, and your local government chooses to allow vehicles without it to be driven on the streets.

While it would be easy to oppose a government requirement for such a device, as a practical matter the government need not make any such requirement. Insurance companies will do so without any prodding (or public opposition). They will do it one at a time, probably in collaboration with the vehicle manufacturers, and without notifying anyone; just arrange to manufacture more and more cars with the ability to record GPS data internally.

Insurance companies that use this capability, when present, will be able to offer lower rates. It's a competitive advantage, and it's fairly unlikely that consumers will be given the opportunity to protest. The data can be read at service station visits (without bothering the customer) and the insurance companies will need to lobby manufacturers (to make cars with this capability) rather than lobbying consumers to buy them. After all, if 90% of the cars out there have the capability, who's going to carefully shop around to find one that doesn't -- just to ensure higher insurance rates?

This is, in my opinion, a classic case of inadequate Constitutional protections. There's nothing illegal about any of this. The only thing standing in the way (now that the technology is available) are people who care about their privacy. And those people don't have the leverage necessary to prevent privacy invasions by private industry.

... and yes, the Patriot Act would permit these records to be obtained from the insurance company with nothing more than a so-called National Security Letter, not a warrant.

Oh, and if personal location information isn't enough, the government can easily correlate that information. Want to know who owns guns? Get the GPS coordinates of all the gun stores and shooting ranges and search your database. Want to know about the friends and associates of that political protestor you're trying to harass? Look up the records and see who he has parked close to on a regular basis. It's perfectly legal, no need for a warrant if the company is cooperative; the records are already there, after all. And that's just what I can come up with in five minutes or so.

This is a dangerous place to go. Let's turn back from the edge before we find out just how dangerous.