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"Hand over your cellphone, bub." State of New York to introduce roadside 'Textalyzer' police

Text and drive

© Flickr/cc-licence/Bob Jagendorf

  • Increasing number of deaths and serious injuries caused by texting whilst driving reported in the US
  • Shocking accident statistics prompt the New York legislature to pass new law
  • 'Textalyzer' legislation would make texting while driving an offence on a par with drunk driving
  • Opponents are concerned about intrusive new snooping powers being handed to the police

Since 2010 most of the legislatures of the 50 states that together make up the contiguous nation of United States of America have passed laws that prohibit texting by drivers when they are on the move. However, most of the laws are routinely ignored by drivers and only sporadically enforced by the police despite the fact that road deaths and serious injuries that are the direct result of texting while driving continue to increase.

The latest figures show that they rose by eight per cent in 2015 alone and are expected to increase again this year and on into the future - unless something is done seriously to address the problem. One suggestion is to treat those who text while driving in the same way as those caught driving while drunk - and to use mobile technology to do it. Yup, The Day of the Textalyzer may soon be on us!

The State of New York is the first to propose that police be given the power and the technology to conduct roadside Textalyzer tests in cases where there are suspicions that an accident may have been caused by a driver texting, emailing, browsing the web or using other electronic comms devices.

Under the proposed legislation a police officer attending the scene of an accident would be empowered to require any of the drivers involved in the incident to produce and hand over their cell phones. The officer would then link the device or devices to the Teaxtalyzer, access the mobile phone's operating system and determine the time and length of recent use and to check whether texting or other non hands-free phone operation was in progress immediately before or at the time of a crash.

Step forward (again), Cellebrite

If, (and it is an 'if rather than a 'when'') New York does actually pass a Textalyzer law it will use technology from Cellebrite, a company headquartered in Israel that recently hit the headlines in the US for providing the FBI with the ability to crack the encrypted iPhone 5c owned by Syed Farook one of the husband and wife team of terrorists who shot and killed 14 people and seriously wounded 22 more in the December 2015 attack in San Bernardino in California. Cellebrite provided the technology after Apple refused to decrypt the iPhone's contents.

Cellebrite says the Textalyzer can "extract and decode mobile device data such as call logs, contacts, calendar, text messages, media files and more" but also claims that it will not permit access to the content of actual conversations, contacts, numbers, photos, or videos and will keep application data private, unless the police have a warrant allowing them such access. Many critics of the proposed legislation regard that as a hollow claim that will be of little value in daily roadside reality.

Currently in the US the police must obtain a warrant to download cellphone records and the process takes quite some time and considerable resources. Privacy advocates point out that the hard won protections are there for good and valid reasons and Donna Lieberman of the New York office of ACLU, the American Civil Liberties Union, commented, “It [the proposed legislation] really invites police to seize phones without justification or warrant,” and referenced the 2014 unanimous ruling by the US Supreme Court that police may not seize and search a mobile phone without a warrant, even after making an arrest.

Those in favour of legislation say that the police would not be allowed to compel drivers unlock their handsets because the Textalyzer will access only metadata on the phone to check whether or not it has recently been in use. Proponents also say, with convoluted sophistry, that the concept of the Textalyzer is simply an extension of the already widely accepted principle of "implied consent" that permits the authorities to breathalyze drivers - the notion being that when people apply for a driver's licence they implicitly consent in advance to take a breathalyzer test if required to do so - or else suffer consequences such a driving ban, fines and even prison. Whether that same implication can be applied to the ownership of a mobile phone is quite another kettle of fish.

Bi-partizan political support for change of law

The proposed new law has bi-partizan support in the New York legislature in Albany with the Republican Senator Terrence Murphy and the Assembly Assistant Speaker Felix Ortiz, a Democrat, jointly backing legislation - as is the Distracted Operators Risk Casualties organisation, or DORCs , as they are known.

Felix Ortiz said, “We need something on the books where people’s behavior can change and they`re going to be more afraid to put their hands on a cellphone." His opponents say that unless police can actually prove (by means of video evidence for example) that they witnessed a person using a cell phone in a vehicle then taking it from the user would be a violation of the Fourth Amendment to the US Constitution.

The Fourth Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." It is the matter of "probable cause" that is in dispute here. When the police stop a vehicle and can smell alcohol on the breath of a driver, that is probable cause for further action. Simple possession of a cell phone is not.

Mr. Ortiz, was a leading advocate for legislation banning the use of hand-held phones and other devices in moving vehicles that eventually came into force in New York State back in 2001. It was the first such law in the US and similar legislation has now spread across the country. He hopes that the same will happen with the Textalyzer law.

The notes that accompany the draft legislation point out that the US National Highway Traffic Safety Administration has ascertained that driving while texting is six times more dangerous than driving while drunk. Nonetheless, in a recent study it was found that "67 per cent of drivers admit to continued use of their cell phones while driving despite knowledge of the inherent danger to themselves and others on the road. Therefore, it is in the state's interest to treat this impairment with a similar methodology to that of drunk driving."

The fact is of course that great American driving public is as variable as the weather. From direct experience of many years of reporting from the US I well know that while the great majority of drivers, especially in towns, are scrupulous observers of highways codes of practice and incredibly polite and careful in their interactions with both pedestrians and other drivers, very many others, especially on the freeways and major roads, are aggressive and speed-mad very bad and very impatient drivers.

Far, far too many of them routinely call, text and surf the web whilst at the wheel. Indeed, such behaviour is utterly commonplace and over the last year I have witnessed many instances of dreadful on the road behaviour including one man driving with his feet sticking out of the passenger side window, several people eating bowls of cereal whilst on their morning commute and many others reading books and papers and watching television whilst driving. However, possibly the most outrageous incident personally witnessed, on a major road in northern California, was that of a woman driving merrily along steering her car with her knees whilst simultaneously playing a banjo!

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