Eyes on the road, or on the state?

Reason reports that new cars sold in the European Union must now carry cameras trained on the driver's own face, monitoring eye movement and flagging inattention. The same technology, the piece notes, may find its way into American vehicles as manufacturers harmonize their fleets across markets. I am not equipped to judge the engineering. I am, however, accustomed to judging the shape of an obligation — and the shape of this one deserves careful reading.

The first question is jurisdictional. When a device manufactured to satisfy one sovereign's law enters the territory of another sovereign, whose rule governs what that device may collect, store, or transmit? This is not a novel dilemma in its structure. In my own time, the question of which nation's law governed a vessel — its flag, its cargo, its crew — was the central anxiety of maritime commerce. The sea offered no natural sovereign; every party claimed authority, and the absence of clear agreement bred conflict. Digital data, I would infer, is not so different. It moves without a hull, without a flag, and far faster than any dispatch vessel I ever commissioned.

The second question is contractual — and here I am on familiar ground. If a buyer in the United States purchases a vehicle that collects biometric data as a condition of its operation, what precisely has that buyer consented to? Consent embedded in small print, presented as the unavoidable cost of commerce, is a thin reed on which to hang the surrender of continuous personal surveillance. A contract whose terms one cannot meaningfully refuse is not, by the canons of equity I was trained in, a fully voluntary agreement. The legislature and the courts must determine whether the public faith — the promise that law protects the citizen's reasonable expectation of privacy within their own conveyance — is being honored or quietly voided.

The third question is one of treaty and regulatory comity. Comity, for those unfamiliar with the term, is the principle by which one sovereign respects the laws of another without being formally bound by them. The danger of comity in reverse — where a domestic manufacturer, to avoid the cost of two product lines, simply builds the European surveillance standard into every car it sells worldwide — is that a foreign regulatory choice becomes the de facto American standard without any American deliberation. This is precisely the kind of quiet legislative displacement that ought to be made visible, not concealed in a product specification sheet.

I do not say the technology is wicked by its nature. A device that prevents a drowsy driver from striking a child in the road may be a genuine good. But a good purpose does not dissolve the obligation to specify, precisely, what is collected, by whom it is held, for how long, under what conditions it may be shared with a government, and under what conditions it must not be. These are the words one must choose as if they bound — because they will.

What should be done is straightforward in principle, if not in execution: Congress should establish, through proper deliberation, clear national standards governing biometric data collected by in-vehicle systems — defining the parties, the scope of collection, the limits of retention, and the conditions under which no executive agency may compel disclosure without judicial process. The courts, for their part, should be prepared to say what the Fourth Amendment means in a cabin that sees the driver's face. That is their proper office. Let them exercise it with the calm that the question deserves.