Good Brother or Big Brother?
Everybody earning a living in the commercial trucking industry feels the regulatory touch. Whether that touch is a helping hand for truckers or a fist wearing brass knuckles is always debatable. From local statute, to state or federal code, from owner/operator to fleet owner each must shoulder their fair share of the regulatory burden. Most are likely to agree that the rules that govern the behavior of commercial trucking help it share and manage risk financially, as well fulfill its essential role in commerce and society. But perhaps most importantly, regulations are intended to support safety--and those that most closely attempt to assure public safety are those that govern hours of service for drivers.
Most are aware that Federal Motor Carrier Safety Administration, (FMCSA) code limits drivers to a maximum 14-hour work shift, during which only 11 can be spent behind the wheel before drivers must take a mandatory 10-hour break. Current practice has drivers using manual paper-based methods to track these hours. It’s at this point that new laws requiring e-logs and current best technologies to track driver hours and improve driver compliance (and hence, safety) is where some feel regulators have crossed a line, going from “Good” brother to “Big” brother in an extra-constitutional intrusion into driver privacy.
In its recent appeal of the government mandate requiring electronic monitoring devices on commercial vehicles, the Owner-Operator Independent Drivers Association (OOIDA) said the new mandate does nothing to advance safety, is arbitrary, capricious and violates driver’s 4th amendment rights against unreasonable searches and seizures. According to OOIDA, it filed the appeal in federal court to prevent the FMCSA from requiring interstate truckers to install electronic logging devices, or ELDs, in their vehicles.
Federal regulators are keen to note that paper-based systems are error prone, cumbersome and can easily be manipulated to skirt the restrictions. In contrast, ELDs automatically record driving time by monitoring engine hours, vehicle movement and location information. In a statement announcing the rule, Transportation Secretary Anthony Foxx said ELDs “allow roadside safety inspectors to unmask violations of federal law that put lives at risk.” These regulations also compel U.S. Fleet operators to prove compliance and many have implemented a number of solutions to automatically, electronically collect and log vehicle operational data to show they do. Proponents, including the FMCSA, argue that electronic logging can eliminate a projected $1 billion in paper-work costs for trucking companies and for law enforcement personnel monitoring the industry.
In the industry group’s press announcement, Jim Johnston, OOIDA President and CEO said “The agency provided no proof of their claims that this mandate would improve highway safety. They didn’t even attempt to compare the safety records of trucking companies that use ELDs and those that do not. There is simply no proof that the costs, burdens and privacy infringements associated with this mandate are justified.”
Johnston explained that for most truckers, a truck is not just a vehicle, it’s an office and a home away from home. “This mandate,” said Johnston, “means monitoring the movement and activities of real people for law enforcement purposes and is an outrageous intrusion of the privacy of professional truckers.” Under federal hours-of-service regulations, said OOIDA, commercial truck drivers are limited in the number of hours they can work and drive daily as well as on a weekly basis. At the crux of OOIDA’s challenge is the fact that the government’s mandate requires truck drivers use ELDs to track operators driving and non-driving activities even though such devices can only track movement and location of a vehicle. OOIDA pointed out that the mandate fails to comply with the congressional statute requiring ELDs to “accurately and automatically” record changes in drivers’ duty status. At best ELDs can only track vehicle movement and still rely on drivers to manually input changes in duty status. At its core, OOIDA contends the devices are no more reliable than paper logbooks for recording hours of service compliance.
OOIDA said that FMCSA’s attempt to compel installation of ELD devices without a warrant is materially an unconstitutional seizure. Regarding searches and seizures, OOIDA argued the Supreme Court has previously found that prolonged use of a warrantless GPS tracking device on a vehicle is clearly a search within the meaning of the 4th amendment. The Association also said the current mandate fails to ensure that ELDs will not be used to harass drivers.
OOIDA has previously challenged a similar mandate in the courts and its current challenge does have the potential to impact the legislation. In 2011, the U.S. Court of Appeals vacated a proposed electronic logbook rule citing FMCSA’s failure to ensure the devices would not be used to harass drivers. From an owner-operator and driver perspective, the regulatory burden the mandate brings is just too great and not justified in practice. On the other hand, technology offers a pathway to efficient, cost-effective compliance which help drive cost and risk (think insurance premiums and legal fees) out of the equation. Does the preservation of individual driver privacy rights outweigh the societal and economic benefits promised by ELDs? Are regulators justified in seeking new ways to prompt safety and compliance? Unfortunately the answer seems to be yes to both.
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