New York legislators are considering a bill (S6325A) that would allow police officers to conduct field testing of mobile telephones after an accident or collision to determine whether the device was used while driving. The latest estimates by the National Highway Traffic Safety Administration put nationwide traffic deaths up by nearly 10% in 2015 from the year prior.
Recognizing the accelerating problem of automobile accidents caused by distracted drivers and treating it as impaired driving, NY legislators in their infinite wisdom have proposed a solution: The Textalyzer.
The technology would give police officers the extraordinary ability to tap into a driver’s cellphone immediately after an accident to check for recent activity of a forbidden use, including texting and emailing. The legislation states that it would determine cell phone usage “without an inquiry into the content.” It does not state, however, the accuracy or validity of the technology, much less the ability of how it would not invade one’s privacy.
It is worth noting that a recent decision by the United States Supreme Court unanimously ruled that the police could not search a suspect’s cellphone without a warrant, even after an arrest. Riley v. United States (2014).
To avoid this constitutional issue, the legislation declares that a driver’s license is a privilege, and exercising such privilege has a certain condition attached: implied consent. Just as a licensed driver impliedly consents to submitting to a breathalyzer test by a peace officer, drivers would now also automatically consent to having their cellphone’s searched for incriminating evidence.
But there is also the practical issue: how effective is this technology? Can it discern between an incoming or outgoing text and email? What about automated activity, such as push-technology and auto-replies for text and email that allow the device to send and receive data without the user’s involvement? The question becomes whether it can be as effective without going so far as to invade one’s firmly established expectation of privacy in their digital device.
So it’s worth following, since New York paved the way in Hands-Free Laws many years ago, other states are likely to be following in hot pursuit.
The New York Times
Blog Post by Taylor S. Moudy, Law Office of Louis J. Goodman