Is the guard mode in Tesla vehicles legally permissible? Data protection advocates are skeptical
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Is the guard mode in Tesla vehicles legally permissible? Data protection advocates are skeptical

Anyone installing a surveillance camera in front of their house must ask themselves whether this is even legally permissible. Tesla vehicles already have a similar feature integrated. This has led to intense debate among data protection experts. Which video recordings justify a legitimate interest, and which are inadmissible? It remains unclear when and for what purpose the cameras are actually activated.

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Tesla's camera features

Tesla vehicles are equipped with multiple cameras: In addition to cameras for interior and driver monitoring, some models from the US automaker feature a dashcam and an exterior camera for the so-called "Sentry Mode." The dashcam is a small camera that is usually mounted on the dashboard or windshield of the vehicle. In newer Tesla models, this is already pre-installed, so vehicle owners no longer have to install it themselves. According to Sebastian Schmidt, the data protection officer for Mecklenburg-Western Pomerania, these cameras continuously record the vehicle's surroundings and store the data for potential evidentiary purposes.

In "Sentry Mode," the vehicle's surroundings can be continuously monitored under certain circumstances, but this usually doesn't happen. Video recording usually only begins when a vehicle or person comes within a few centimeters of a parked Tesla.

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What do data protection advocates say about Tesla?

According to the State Commissioner for Data Protection, the use of such cameras is not compatible with German law. An official statement emphasizes: "The permanent and random creation of video recordings in public traffic is fundamentally prohibited." It also states: "Collecting evidence of a hypothetical accident is not sufficient to justify a 'legitimate interest' in the use of such cameras and the processing of personal data."

The data protection authorities are weighing the vehicle owner's interest in preserving evidence against the right to informational self-determination of other road users, such as cyclists or other motorists, who can also be recorded by the cameras. They also cite a ruling by the Federal Court of Justice (BGH) of May 15, 2018 (case no. VI ZR 233/17, para. 26), according to which only "short-term and event-related recording" would be permissible.

Tesla camera can only be used under these conditions

The use of cameras in compliance with data protection regulations is only possible if the following conditions are met:

There must be a ring buffer system that immediately overwrites and thus deletes the recorded data.
The storage cycle should only be about one to two minutes long.

This requirement is considered permissible by data protection authorities because “for the documentation of an accident, it is sufficient to store a period of approximately 30 seconds to one minute before and after the accident”.

Some Tesla models already have a ring buffer system. However, the time window on these models is manually adjustable, which means it can exceed the one- to two-minute default.

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Is guard mode generally prohibited?

In Sentinel Mode, the surroundings of a Tesla vehicle can be continuously filmed, privacy advocates explain. To activate this feature, a USB stick must be inserted inside the vehicle. As soon as the Tesla detection system detects relevant movement, recording begins. According to the magazine Focus Tesla drivers can also activate the guard mode cameras via their smartphone app and thus record the vehicle's surroundings even without a specific reason.

The State Commissioner for Data Protection sees this as a significant problem. Often, there is no clear reason to activate guard mode. Furthermore, the vehicle's surroundings are filmed for several minutes, recording and storing uninvolved passersby and potentially other personal data such as license plate numbers, according to Schmidt.

Data protection law firm takes a different view

Some data protection experts see the situation in a less clear-cut manner and question why the interests of Tesla drivers are not sufficiently taken into account. Kemal Webersohn, an auditor at a data protection law firm, is one of them. He explains: "According to Article 6 (1) (f) GDPR [General Data Protection Regulation], processing is lawful if it is necessary to protect a legitimate interest of the controller and the interests or fundamental rights of the data subject do not override it."

Additionally, please note that the video footage is not stored directly in the vehicle, but rather on the USB drive that also activates the dashcam and exterior camera. Tesla does not share this data.

Recorded video recordings may be used as evidence under certain circumstances

Despite the fact that some courts reject dashcam recordings that are inadmissible under data protection law as evidence, according to Schmidt, the position of the Federal Court of Justice (BGH) remains unchanged: "The admissibility under data protection law and the usability in court proceedings are two different issues." It is the judges alone who decide whether video recordings may be used in court proceedings.

Could Tesla drivers face penalties?

In the past, Tesla drivers have repeatedly been fined for activating their dashcams and Sentry Mode. However, a definitive ruling on this issue is still pending. Those who want to be on the safe side should deactivate Sentry Mode by either removing the USB drive or manually turning it off. Additionally, vehicle owners should ensure that the dashcam only records when specifically needed and that the recordings are deleted after one to two minutes at the most.

Important: Publishing the video material online or on other platforms is strictly prohibited. In the event of a violation, plaintiffs could assert, among other things, the following claims: