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Brother is Driving You
Controversial and creepy technology, which lets car rental agencies track whether drivers are speeding, finally has its day in court. Privacy loses.
a jury of six Connecticut residents only about 40 minutes to decide that
ultimately, Big Brother can ride shotgun.
On Tuesday, May 25, the case involving Acme Rent-a-Car--the notorious New Haven rental car company that used a satellite tracking device to catch customers speeding--finally came to a speedy and eerily quiet close.
However, the decision in the case of Turner v. American Car Rental may open dangerous doors.
James Turner sued Acme (American Car Rental) in New Haven Superior Court for invasion of privacy and violating the state's Unfair Trade Practices Act, after Acme--automatically and without permission--withdrew $450 from his bank account for speeding in an Acme minivan. The Whalley Avenue agency had equipped its vehicles with a global positioning device, which tracks customers' locations and driving habits.
Acme has stuck to its self-proclaimed humanitarian guns from the get-go: GPS is essential in protecting against stolen cars. Speeding is dangerous to the public. Levying fines, even for personal gain, saves lives. Acme also maintains that Turner knew he was being tracked because he signed a contract.
No harm, no Orwellian foul.
Turner's assertion is quite different. He claims that when he signed Acme's rental agreement in October 2000, he didn't notice the warning at the top of the contract that read: "Vehicles in excess of posted speed limit will be charged $150 fee per occurrence. All our vehicles are GPS equipped."
He didn't notice it, he claims, because no other Acme contract he'd signed previously had the warning. He was a frequent customer since, as a booking agent for New Haven's Palace Theater, he did a lot of traveling.
Turner signed the contract and left on a long, strange trip into unintentional notoriety.
About 18 hours later, upon returning from a round trip to Virginia, Turner found not only that his bank account had been drained, but that he'd been electronically followed.
AirIQ, a sophisticated Canadian satellite service provider, had clocked him "going at speeds in excess of 90 mph on three separate occasions," according to court papers. The internal device did, but the cops didn't. Turner was never stopped on the highway.
Turner realized the Acme had its own system of justice: None. Had state troopers caught him speeding, Turner would've benefited from a court system. Instead, he was stripped of any due process in Acme's lawless world. He was handed a card for Acme's "Legal Department" in Greenwich with a warning, "no phone calls accepted." Acme's "legal department" consisted of a porch-style mailbox stuffed with old mail.
Turner didn't deny speeding, but maintained that he was "traveling with the flow of traffic." Turner has also stated that even if he had noticed the two-line warning, he thought GPS was "for getting lost." He testified that GPS's capabilities were never explained to him.
Nor were they explained to the jury.
James Turner's account of what happened to him after a simple business trip four years ago drove the world mad, pushing privacy issues into the frontal lobes of our collective consciousness. If we weren't paranoid before, Acme put a face on a faceless spectre of surveillance.
Countless media outlets hounded Turner. He appeared on German TV, was quoted in Russian newspapers and featured on American radio shows from coast to coast. Liberals, conservatives, libertarians and militia nuts all wanted a piece of his story. Big Brother was big that year. Turner's tale was so popular that it became a Trivial Pursuit question.
But last week in New Haven Superior Court, only 12 people were present for a precedent-setting trial--six jurors (plus one alternate); Hon. Howard F. Zoarski; Turner; his lawyer, Bernadette Keyes; and Max Brunswick, Acme's attorney. The New Haven Advocate , first to report the story back in 2000, was the only media represented.
Not even Acme owner Paul Kozlowski showed up.
Testimony was limited to Turner and former Acme employee Paul Serra. Once a Kozlowski toady, now a disgruntled former Acme clerk, Serra appeared as a witness for the plaintiff.
Two guys--Turner and a fired employee--faced off against Big Brother.
T urner took the stand first. He testified that he signed the contract but didn't notice the speeding warning. He felt invaded after finding out he'd been spied on from the sky. There were no stickers or signs posted in either the van or the office. He testified that he refused Acme's initial refund offer of $450 because it wasn't about money--he wanted to address privacy issues in the courts.
"Acme never explained what GPS was," testified Turner. "I had to initialize other things on the contract but not that."
Brunswick noted that the GPS system only tracked Turner for a total of about eight minutes. (It only records if a driver is speeding for more than two minutes at a time.)
"You were tracked between four and eight minutes, during an 18-hour trip," Brunswick asked Turner. "And you feel your privacy was invaded?"
"Yes," testified Turner.
"The warning is in bold [typeface]," said Brunswick. "You didn't see it?"
"No," replied a calm Turner.
Brunswick hammered Turner on his refusal to accept Acme's offer. "Was this before or after Good Morning America called?" asked Brunswick, as if to suggest to the jury that his "fame" triggered the lawsuit.
Turner said he never called Good Morning America . They called him.
S erra told the jury how his former boss changed the contracts several times, so often that Turner signed two different contracts within 42 minutes one day when he rented a car for himself and another one minutes later for his sister.
Serra testified to the state's consumer protection commission in September 2001 that he explained GPS to "every single solitary customer." He backpedaled on the stand this time, stating he didn't remember explaining GPS to Turner. This punctured the credibility of the plaintiff's only witness.
Serra did say "there were many complaints" against Acme's practices, but all were handled by Kozlowski. As to Acme's "Legal Office," Serra testified "no one was there."
Serra's testimony bolstered the case for Turner's claim that Acme violated the state's Unfair Trade Practices Act. But there were no witnesses, besides Turner, to steer the jury to the scary capabilities of high-tech tracking devices or support that Turner's right to privacy was invaded.
The trial needed a GPS system of its own to keep the case from going south. It was becoming clear that privacy was taking a back seat to fine print.
B ecause of the lack of subpoena power in Canada, Keyes said no one from AirIQ could testify. Had the jury been informed of AirIQ's capabilities, perhaps they might, just possibly, have ruled differently on privacy.
Air IQ is a Toronto-based telematics company that provides GPS systems to many rental car agencies in the U.S. Putting their technology on the stand might have projected an air of omnipotence.
The jury would've heard about the potential to put surveillence technology into the hands of the guy behind the counter, or of a guy with a vendetta.
With a click of the mouse, such guys can unlock car doors and disable the vehicle's starter; only they can reactivate it. Credit card not go through? Click, you're stranded. Clerical error? Click, the wrong renter is locked out of the car at 3 in the morning on the way to the hospital. Or the correct one is shut down while traveling in the outside lane of a highway.
But alas, there was only Turner's word, Serra's sincere yet incredible testimony, and Keyes' closing argument.
Strong though her closing was--she incited fear at the possibility of the tracking technology falling into the wrong hands (such as an abusive husband or a felon hoping to track when homeowners are away)--the jury sided with Brunswick's client on the privacy issue.
And his closing remarks were bizarre and frightening.
Brunswick argued that Acme's GPS practices (which had been declared "a clear violation of privacy" by Connecticut Attorney General Richard Blumenthal) are similar to hotel smoke detectors.
"Let me ask you this," Brunswick addressed the jury: "Does a smoke detector invade someone's privacy? Can they rip one down [in a hotel room] simply because they want to smoke?"
"There's no law that says you can't do this in your own car," said Brunswick. "Somebody shouldn't expect the right to privacy when it comes to speeding."
"Someone who owns a vehicle has the right to put anything they want in a car," said Brunswick.
The jury found Acme's business dealings were deceptive. For that Turner will be awarded punitive damages, to be decided by Zoarski within the next two weeks. What was intended to be an important privacy case boiled down to a contractual "he said/ he said."
Keyes will appeal, stating that Zoarski's charge to the jury implied that because Turner can read and write, there was a presumption that he understood the contract.
Also on appeal is the state's consumer protection case against Acme.
If you think this issue is being waged by one guy against one satellite, note that a California assemblywoman reacted to a similar case of intrusion by a Bay Area rental agency. She introduced a bill that rental car agencies must tell customers when making a reservation whether the car has "electric surveillance technology" and what it's used for. Disclosure would be oral and written in at least 12-point type on the contract.
In Connecticut, there
are no laws governing the use of GPS. Until there are, be sure, when renting
a car, to look up to the sky and say, "cheese."