FMCSA's reply brief in ELD lawsuit a mixed message on driver privacy

By Jami Jones, managing editor

The Federal Motor Carrier Safety Administration attempted to defend the electronic logging mandate in a reply brief filed by the agency in mid-June – using arguments for and against driver privacy.

FMCSA issued a final rule on Dec. 10, 2015, that mandates all model year 2000 and newer trucks be equipped with electronic logging devices by December 2017. Logging devices and automatic on-board recorders currently approved for use in tracking hours of service will be allowed for four years beyond the December 2017 deadline.

One day after FMCSA published the final rule, the Owner-Operator Independent Drivers Association filed a petition for review with the U.S. Court of Appeals for the 7th Circuit, essentially seeking to have the rule overturned. OOIDA argues the mandate does not advance safety, is arbitrary and capricious, and violates 4th Amendment rights against unreasonable searches and seizures.

This is the second time OOIDA has sued the agency over an electronic logging mandate. The first time the agency sought to require motor carriers with particularly bad hours of service compliance records to use the devices. OOIDA’s suit, which presented three key arguments, was successful and the rule was thrown out. The 7th Circuit only needed one of OOIDA’s arguments, driver harassment, to decide the rule’s fate.

The FMCSA reply brief in the current lawsuit was filed on June 15.

By far and away the most curious positions or arguments that FMCSA presented contradicted themselves on the issues of driver privacy. In one instance, the agency defends a driver’s right to privacy. Later in the reply brief, FMCSA attacks expectation of a driver’s privacy because trucking is “closely regulated.”

Tracking HOS

The agency’s brief admits that ELDs automatically track only the date, time and location of a vehicle; when it’s powered up or down; and the location of the vehicle at one-hour intervals when moving.

That’s where, by FMCSA’s own admission in the brief, the ELD’s ability to automatically track compliance ends.

To justify this shortcoming, FMCSA turns to the MAP-21 language.

“To be sure, ELDs require manual entry of other driver statuses – e.g., sleeping in the sleeper berth, on duty not driving – but the (MAP-21) statute does not say that ‘all’ of a driver’s hours of service or ‘all’ duty status must be recorded automatically,” the brief states.

The agency contends that to track drivers beyond the driving time was not the intention of Congress in MAP-21 when the word “automatically” was included in the statute.

The agency went on to argue that to “automatically” track all HOS compliance of a driver would be intrusive to driver privacy and Congress “should not be presumed” to have mandated around-the-clock surveillance of drivers.

The flip-flop

Pages later in the reply brief, in an attempt to counter OOIDA’s arguments that the devices infringe on driver privacy, FMCSA invoked the “closely regulated industry” argument and sold out driver privacy.

The agency contends that because the mandated devices would be used by motor carriers voluntarily operating in the trucking industry, there is no “physical intrusion” by the government onto private property.

With that argument, FMCSA is basically saying that since a government official is not physically installing the devices on the truck, protections against unreasonable search and seizure in the Fourth Amendment do not apply to ELDs.

The agency goes on to say that ELDs are a “permissible warrantless search in a pervasively regulated industry” and that expectations of privacy while driving the truck are seriously diminished.

“Reasonable expectations of privacy ‘in commercial premises’ are ‘less than’ privacy expectations ‘in an individual’s home,’” the brief states. The agency goes on to argue that privacy expectations are “particularly lower ‘in commercial property employed in ‘closely regulated’ industries.’”

Next volley

It’s now OOIDA’s turn to file a response to FMCSA’s argument. The Association requested an extension beyond the original June 29 deadline to file a response.

In the request, OOIDA cited complex issues raised by FMCSA and a pending filing by the American Trucking Associations seeking intervenor status.

The court approved the extension. OOIDA’s response to FMCSA’s reply brief and to ATA’s intervenor filing is now due Aug. 12. LL