By Justin Gardner
As government continues to expand, finding ever more ways to feed itself through taxation, it seeks to justify this burgeoning existence. Enter the Nanny State.
New York is a leader in developing laws and regulations to protect us from ourselves, perhaps most famously with the Big Apple’s attempt to ban large-size sugary drinks. The Empire State has the highest cigarette taxes in the nation, which fuels a black market, and it places heavy restrictions on other “sins.”
No one doubts that cigarettes and an excess of sugary drinks are bad for the health, but it is not the state’s responsibility to manage this behavior. The issue becomes trickier when bad behavior puts other people’s lives in danger.
New York was the first state to place restrictions on cell phone use while driving, which has prompted 46 other states to ban texting while driving over the last seven years. The issue of driving while distracted—especially texting—has undoubtedly become a huge problem.
Unfortunately things are not getting better, as road fatalities are up sharply after years of decline. While the impact of texting while driving is debated, the fact remains that personal responsibility—through good parenting, awareness campaigns and common sense—is the surest way to address the problem.
New York legislators are seeking to expand the state’s involvement in the issue, and this time with dire consequences for privacy rights. The proposed bill would allow cops to take a person’s cell phone and connect it to a machine called the Textalyzer.
It would work like this: An officer arriving at the scene of a crash could ask for the phones of any drivers involved and use the Textalyzer to tap into the operating system to check for recent activity.
The technology could determine whether a driver had used the phone to text, email or do anything else that is forbidden under New York’s hands-free driving laws, which prohibit drivers from holding phones to their ear. Failure to hand over a phone could lead to the suspension of a driver’s license, similar to the consequences for refusing a Breathalyzer.
The legal theory of “implied consent” that is used for the Breathalyzer—where drivers consent in advance when obtaining a license—would also be employed here. Instead of insisting that a person breathe into a tube, cops would be able to snatch your cell phone and analyze its data.
Proponents of the bill are quick to say that the Textalyzer would not allow police to look at emails or texts. One sponsor of the bill, Felix Ortiz, expressed his enthusiasm at the heavy-handed tactic.
“We need something on the books where people’s behavior can change,” said Mr. Ortiz, who pushed for the state’s 2001 ban on hand-held devices by drivers. If the Textalyzer bill becomes law, he said, “people are going to be more afraid to put their hands on the cellphone.”
If passed, the law would surely meet with resistance from advocates for constitutional rights. In 2014, the Supreme Court unanimously ruled that police need a warrant to search a cell phone, even after an arrest.
Some would argue that because the Textalyzer is only checking to see if certain apps were used—not scraping content off your phone—it is not considered a “search.”
But as Noah Feldman, a Bloomberg View columnist, points out, the device would have to look at all of your apps and differentiate between texting and others that are permissible, such as audio apps. Also, would people be forced to unlock their phones, or would the Textalyzer be able to bypass encryption?
It seems that it would be easy to demonstrate to a court that the device is indeed a search tool and subject to the warrant requirement.
Proponents of the bill are relying heavily on equating the Textalyzer to the Breathalyzer. However, measuring the carbon dioxide in one’s breath is a simple and proven test that accurately detects blood-alcohol level.
The Textalyzer is not straightforward and cannot reliably tell if the driver was distracted or even using a cell phone. Several scenarios could render the test meaningless.
What if the driver asks a friend to send a text message? What if the driver had texted just before getting behind the wheel? Is the time frame arbitrary? What if an automated email response was sent, and the driver didn’t touch the phone? What if the driver is using a GPS app, and something in the program was mistaken for using the keyboard?
There are many ways in which the Textalyzer could give the wrong impression to cops.
Finally, there is the very real issue of cops being unable to resist trampling on your rights. Once they have the phone in their hands, safely in their vehicle, how many cops will go ahead and search it, actually looking through your text messages, emails and pictures? Far too often we have seen police violate rights in this way and get away with it.
“It really invites police to seize phones without justification or warrant,” said Donna Lieberman, the executive director of the New York chapter of the American Civil Liberties Union.
Rather than using the power of the state to further dismantle privacy rights–with a device that would easily produce false positives–efforts should focus on awareness campaigns.
Harvard’s School of Public Health—the same entity that created the designated driver campaign in the 1980s—is developing a new campaign for distracted driving, including encouraging parents to set a better example. Groups are pressuring social media like Facebook and Twitter to discourage distracted driving.
YouTube will be recruiting stars to create original content pushing the message to refrain from texting and distracted driving. AT&T, NASCAR and a major automaker are other potential partners in Harvard’s awareness campaign.
There is an app called LifeSaver that automatically locks a cell phone when driving starts, and unlocks it after a programmed wait time upon stopping. It is aimed toward teenage drivers; parents can track phone activity and reward good behavior.
Cell phone providers are responding, too, with features that turn off text notifications when in a moving car. It can even respond with an automated text saying that you are driving.
In the age of smartphones, distracted driving is certainly a dangerous problem. There are many paths to a solution, but giving police the power to invade your privacy through a Textalyzer, thus giving them more temptation to further violate your rights, is not the answer.