Proposed 'textalyzer' law for texting and driving raises privacy concerns

A proposed New York state law that would allow police to test technology to check if drivers had been texting and driving before a crash — without a warrant — is causing controversy.

Police don't have the right tools to combat texting and driving, advocates say

The 29-year-old woman was charged with dangerous operation of a motor vehicle (Getty Images)

A proposed New York state law that would allow police to test technology to check if drivers had been texting and driving before a crash — without a warrant — is causing controversy.

Advocates of the proposed law say better tools to help police enforce distracted-driving laws will discourage reckless behaviour such as texting and save lives.

But critics say the proposed law doesn't contain enough safeguards to protect the privacy of drivers.

The proposed legislation was introduced as a bipartisan bill in April by Felix Ortiz, Democratic assistant speaker for the New York Assembly, and Republican Senator Terrence P. Murphy.

It requires any driver involved in a collision resulting in damage, injury or death to surrender to police any mobile device in their possession at or near the time of the collision.

Police would test the device for evidence of use in the minutes before the collision. Results of the test would be used as evidence of a violation of distracted-driving laws, which ban texting while driving.

According to the Canadian Automobile Association, a person is 23 times more likely to be involved in a crash if they text while driving, compared with non-distracted drivers.

"There is a significant number of drivers who continually engage in reckless behavior, such as texting, using apps and browsing the web on their mobile devices while behind the wheel," Ortiz said in a release announcing the proposal.

"These people will continue to put themselves and others at risk unless we give law enforcement better tools to enforce existing laws against the use of electronic devices while driving."

In memory of Evan

Ortiz and Murphy developed the proposed law in collaboration with Ben Lieberman, co-founder of distracted driving awareness organization Distracted Operators Risk Casualties (DORCs). The law is being called "Evan's law" after Lieberman's son, who was 19 years old when he died a month after a collision that Lieberman believes was linked to texting and driving.

"We believe strongly that this is an impairment equal to if not worse than drunk driving," Lieberman told CBC's The Current Friday. He's convinced that the proposed law will discourage such behaviour.

"Once people were held accountable for drunk driving issues, that's when the problem started getting better," he said.

The "textalyzer" is a roadside test for your phone to see if you've been texting while driving. The device is a proposal in New York state but has people across North America talking. Privacy advocates say the "textalyzer" is invasive and unnecessary.

Following the crash that killed Evan, the driver's phone was never examined by police, Lieberman recalled.

"What we learned was that the police rarely look into the phone at all," he added, "and it's not their fault, because there isn't a police protocol in place."

Lieberman later subpoenaed the driver's phone records for a civil lawsuit and learned that the driver had been texting while driving on an old road with difficult driving conditions.

"Anyone texting on that road is begging for a collision," he said.

Technology thought to be feasible

Convinced that police didn't have the right tools to investigate texting and driving, Lieberman contacted a company called Cellebrite that specializes in phone forensics. He asked if it was possible to create a device that police could plug into a phone at a crash site that would generate a report on the device's usage during the drive, without revealing private information such as contacts or the content of conversations and text messages.

In the U.S., a warrant is needed to administer a breathalyzer to a driver in case of a suspected drunk driving collision. (Darryl Dyck/Canadian Press)

Cellebrite told Lieberman it was confident it could create such a device, and he began working with New York legislators to propose a new law that would make use of it.

Cellebrite declined to be interviewed by The Current.

Andrew Selbst, scholar in residence at the Electronic Privacy Information Center, said he agrees that texting and driving is a huge problem, but the proposed law as written doesn't contain enough safeguards.

"One of problems with this is anyone who gets into accident with no evidence or even suspicion that they were actually  texting and driving … will have to turn over their phone on penalty of losing their licence," he told The Current. "That's just not how we do it."

The U.S. Supreme Court ruled in 2014 that police can't search a phone without a warrant.

Selbst noted that the U.S. Supreme Court has also ruled that a warrant is needed to administer a breathalyzer to a driver in case of a suspected drunk driving collision. And that only happens in cases where there's reason to suspect the driver was intoxicated — for example, if he or she was swerving while driving.

'Not practical'

Lieberman opposes any requirement for a warrant to test for texting and driving.

"It's just not practical, and it's not getting done right now," he said.

Selbst disagrees, saying that warrants take as little as five minutes to obtain.

"I would be in favour of the ability to apply some sort of technology that could check the phone," he added, "but with additional safeguards such as warrant predicated on probable cause."

He added that there's also no way to know how well such technology protects privacy until it's available and evaluated by a third party.

In the meantime, he thinks "a world of good could be done" by raising public awareness and training police to ask about distracted driving.


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