Although it is not yet ready for everyday use, lawmakers in several states are writing or considering legislation to allow law enforcement officers patrolling the highways to connect a device known as a “textalyzer” to a mobile phone to instantly learn if the driver was texting prior to a crash.
Legislation was introduced in New York State that would make your phone available to a police officer mandatory so they could check any texting activity. The law is similar in scope, some suggest, to laws that require drivers to submit to a breathalyzer. Not blowing into the device can be grounds for arrest, citation or another punitive action. Other states including New Jersey and Tennessee are studying the textalyzer with an eye toward legislation.
The demonstration of a textalyzer device from Cellebrite for lawmakers in Albany, NY, last April was spurred by Ben Lieberman, whose 19-year-old son – sitting in the back seat of a car – was killed in a car crash north of New York City in 2011.
The father complained that it was difficult for police to obtain phone records, which eventually showed that the driver of his son's car was texting prior to the crash and had drifted into oncoming traffic.
In response, Lieberman, founded Distracted Operators Risk Casualties and is working with Cellebrite to promote textalyzer legislation.
At the demonstration in Albany, a Cellebrite engineer told NPR and other media that the technology still isn't fully developed, but would be tailored to what's legal in each jurisdiction that approves its use.
He added that the textalyzer would only capture taps and swipes to determine if a driver was using the phone — that it would not download content — and that it would be able to tell if the driver was using a phone legally such as hands-free.
That said, the device faces legal and technological hurdles. (An official of Banner Public Affairs in Washington, DC, a public relations firm that represents Cellebrite, said that no one from the company was available to talk about the device with Fleet Owner.)
Professor Laurent Sacharoff – who teaches criminal law, criminal procedure, evidence, cybercrime, and international criminal at the University of Arkansas, and is an expert on the Fourth Amendment "Search and Seizure" law – said that the comparison to a breathalyzer doesn't always ring true.
He cites recent court rulings mandating that checking a person's mobile phone by police is a greater invasion of privacy than a breathalyzer and should be held to stricter legal standards making it more difficult for police search your mobile phone without a strong reason to do so.
"Your phone has your entire life in it,” Sacharoff explained. “It's a huge invasion of privacy."
He suggests that laws allowing textalyzers would most likely find their way to the Supreme Court.
Truckers May be Held to a Higher Standard
He also warned that truck drivers often are held to a different standard than other drivers which may make them more vulnerable to a mobile phone search.
"They [car drivers and truckers] both have regulations against not drinking and drinking, but trucking as a regulated industry has a different Fourth Amendment standard than ordinary drivers,” Sacharoff said.
“If a locality creates a specialized statute or regulation that requires truckers to allow inspectors to stick this plug in and get the data about texting, as part of a carefully regulated industry and regulated particularly for safety, that might pass Fourth Amendment scrutiny,” he added. “There are cases which have passed Fourth Amendment scrutiny in the sense that the officer would not need a warrant and may not even need probable cause."
Jay Stanley, senior policy analyst with the Speech, Privacy, and Technology Project of the American Civil Liberties Union, said that the textalyzer raises some thorny legal questions.
"Sometimes my phone buzzes while I'm driving and I say to my wife, 'Hey, will you take a look at my phone and see if that text is from my co-worker? If it is, will you type back a response and say this, 'Blah blah blah?' If I get in a crash and the police officer takes my phone, how do they establish who actually was using it?”
He added that many apps automatically answer texts or allow you to answer with voice: "The line between manual responses and automated are going to blur."
Also, Stanley said that there are a huge number of apps having to do with texting that could be on a phone.
"It's not something that you can plug a computer into and get a yes/no red light or a green light. You need human judgment here," he explained. "What happens if a phone is encrypted and the driver refuses to un-encrypt it in the presence of a police officer?"
Referring to court decisions saying that police checking a person's phone is considered invasions of privacy, "Generally, you don't have to reveal your password,” Stanley noted. “There are some serious unanswered constitutional questions about whether you could be forced to reveal your password. Some court decisions have been that you can be forced to give a fingerprint, but you can't be forced to reveal a password."
He echoed those who say that the textalyzer is not the same as a breathalyzer which only measures one thing – blood alcohol level.
“Unlike a blood sample, exposing your cell phone exposes many, many more things about you than a simple chemical measurement of the breathalyzer," Stanley pointed out, which also brings up a computer safety issue as well. "How do I know that the police officer's device doesn't have malware on it that even the company may not know about?"
He added that, for centuries, when it came to potentially highly-intrusive invasions of privacy by the government, the U.S. had a very well-worn structure for handling it: a warrant based on probable cause.
“I don't think that we should throw that over board here,” Stanley said.
Equal Treatment Under the Law?
Jerome Greco, Digital Forensic Staff Attorney at the Legal Aid Society in New York, is concerned that any law allowing a textalyzer device might be administered unfairly to different drivers.
"There are a million different texting apps on the market and new ones come out every single day. How is it [textalyzer] going to be able to keep up with that? And in that same vein, there are a million different phones that come out all the time,” he explained.
“Although Cellebrite in the past has said their devices have had extensive compatibility with a lot of these phones, they can’t get into all of them,"
He noted. “Take for example the iPhone 7. If you have it set up with the encryption, Cellebrite can’t get into it. That means the law is going to be applied inconsistently because you will have somebody with an older phone or an encrypted phone [that the textalyzer can't check]. Then you have other people who may have a brand new phone that Cellebrite can’t get into yet. If they're texting, they’re okay, but if you have an older phone and text, then you’re not. That seems like an inconsistent way to apply the law.”
By extension, he asked, are we going to start forcing people to unlock their phones as part of the law?
"What if a driver says they don't have a phone," Greco said. "Does the police officer assume that they're lying and checks the phones of everyone in the car?"
He also takes issue with the comparison to a breathalyzer because time is of the essence as alcohol levels diminish with time.
"That's not true with your phone records. If police don’t check it [at the scene] and get my phone records later, my phone records are still going to say I sent the text or made a phone call – or received a text or received a phone call,” Greco noted.
“The immediacy that’s present in the DWI [driving while intoxicated] situation is not present here. I’ve seen people say that it is very difficult for [law enforcement] to do to get phone records. I strongly disagree," he emphasized. “I think that it’s noble and honorable for law enforcement to try to prevent accidents by people texting on their phone, but you can’t violate people’s constitutional rights in order to achieve that"
Syncing Textalyzers with Event Recorders
Marc Lamber, a personal injury lawyer with the Lamber Goodnow legal team, takes a more positive view of the textalyzer.
"I think in concept it has components that I think are a good idea. Obviously I’m going to worry about civil rights issues,” he said.
“If you accept what they [Cellebrite] are telling us about this technology... that what they’re extracting from the phone is a type of swipe, meaning you were typing or swiping somehow on the phone, but it’s not extracting the content, then from my perspective that could be helpful because drivers – typically when they’re pulled over – aren’t going to acknowledge, to admit that they were texting,” Lamber pointed out. “Someone may say: 'then you just get the phone records,' but it’s just not that easy."
He suggested that a phone record would not show if a person composed a text but didn't send it, and they might be just as distracted as if they pushed the 'send' button.
Lamber also said that many newer vehicles have event recorders that can be checked against information from the textalyzer to determine if a crash occurred during or just after a text.
"… That would be a way of trying to establish that someone was or was not texting or using their cell phone at the time of the collision. So you could couple them, join technologies if you will," he explained.
As for privacy issues, “I think it first comes down to determining what does this technology do or have the capacity to do,” Lamber noted. “If it only has the capacity to determine if someone was on the phone and at what time were they on the phone, then to me I have lesser concerns with respect to privacy. If it has the capacity to obtain more information about who you were speaking with or what the conversation was, then obviously that’s a grave concern. And someone shouldn’t be able to, in my view, obtain that information during a traffic stop."
Lamber cautioned, though, that this technology by itself isn’t the “end-all and be-all” when it comes to crash investigations.
“Does the textalyzer have any place depending upon how it’s used? Probably. It doesn’t end the inquiry; it begins the inquiry. Your testimony, the driver’s testimony, the passenger’s testimony, other physical evidence must be examined. It’s not open and shut; it’s just another piece of evidence."