Topic: Privacy, Public Safety, and the Fourth Amendment
By: Andrew Tepper
April 14th, 2016
Texting while driving is a public safety concern and many states have imposed laws cracking down on offenders. Recently, New York lawmakers have proposed legislation to allow police to use a device to determine whether a driver, who was involved in a motor vehicle accident, was texting while driving. Officially, the bill, Senate Bill S6325A, “[p]rovides for the field testing for use of mobile telephones and portable electronic devices while driving after an accident or collision.” SB S6325A. The device has been dubbed a “textalyzer” and Cellebrite, the Israel firm that many believe may have helped the FBI crack the Apple encryption, is one company who is developing the technology.
The bill calls for a driver who is involved in an accident to give their phone to the authorities for testing. If the driver does not comply their license would be suspended immediately. Furthermore, if the law does pass it would change the current law so that now drivers would give “implied consent” to the authorities to test their phones “or portable electronic device…at or near the time of the accident or collision.” SB S6325A. While this law may be heralded as a public safety triumph it raises major concerns the Fourth Amendment’s right to privacy.
It is clear that this was on the mind of lawmakers, as “the textalyzer allegedly would keep conversations, contacts, numbers, photos, and application data private.”[1] Instead, the “texalyzer,” perhaps by using metadata, will only show if the phone was in use prior to an accident.
Despite these assurances questions surrounding the law’s efficacy and Fourth Amendment privacy issues still exist. Firstly, if the “texalyzer” does test for metadata a person can potentially find ways to encrypt their device’s metadata leading to issues involving warrants and hacking. More importantly though are the Fourth Amendment concerns.
As the law was proposed this week and the technology is still being developed many of these questions and uncertainties do not have answers. Firstly, in the age of information hack it is unclear how anonymous this type of testing would be—leading to a whole host of other concerns. Cellebrite currently has technology that can check a phone’s activity. Would the “texalyzer” provide access to or capture a mobile device’s content even if does not intend to do so? What is clear, however, is that this proposed law furthers the complicated debate between increased safety and invasion of privacy.
Additional sources:
http://www.theverge.com/2016/4/12/11412314/textalyzer-distracted-driving-new-york-legislation
https://www.nysenate.gov/legislation/bills/2015/s6325/amendment/a
[1] David Kravets, First came the Breathalyzer, now meet the roadside police “textalyzer”, Ars Technia, Apr 11, 2016, http://arstechnica.com/tech-policy/2016/04/first-came-the-breathalyzer-now-meet-the-roadside-police-textalyzer/.