(Newswire.net — August 19, 2017) — We’re at a legal and technological turning point; there are nearly endless things we can do from a material standpoint, but are they legally permissible? The Textalyzer, a new device being considered in New York, is a prime example of this.
What is the Textalyzer and why is it controversial? At its core, the Textalyzer is much like a breathalyzer – it can be used to prove fault in a car accident – but it has much deeper implications for individual privacy. Here’s what’s at stake.
On The Scene
The moments after a car accident are dramatic, stressful, and fundamentally structured by a long list of things you need to take care of. You’ll need to move to safety, call the police, document the scene, and so much more. In these activity-packed moments, each party involved will be invested in proving they weren’t at fault.
A driver can be considered negligent for speeding, tailgating, driving while distracted or intoxicated, or simply being reckless. For police forces, the Textalyzer is a way to prove fault, specifically distracted driving caused by texting. But for civil liberties advocates, it may be an infringement on individual privacy rights.
Scanning For Distraction
When someone’s pulled over or involved in an accident and is suspected of drunk driving, they’re administered a breathalyzer test. Breathalyzers are used to measure blood alcohol level and assess whether the individual was within the legal limit. That’s a quantifiable marker, but how do you measure distraction? This is the question the Textalyzer seeks to answer.
Police using Textalyzers would plug the device into the phone to determine if the driver had been using their phone before the accident. This includes not just texting, but also surfing the web and making phone calls. The current understanding is that the device would only assess whether the phone was in use, not what the user was doing or any information about message content or recipients, but privacy advocates aren’t so sure.
Privacy Problems
There are several core topics of concern raised by civil liberties experts regarding the Textalyzer – and with good reason. First, there are questions about whether or not individuals can refuse to have their phones scanned, and this goes hand in hand with constitutional concerns about unreasonable search and seizures.
In a 2014 Supreme Court case, the Court ruled that police need a warrant to search someone’s phone. Does the Textalyzer constitute a search if it only assesses whether the phone was in use? Is that the same as searching through contacts or messages?
For many advocates, the distinction doesn’t matter because an accident doesn’t constitute a probable cause for searching the phone. There are plenty of reasons for an accident that don’t involve texting or otherwise using the phone.
Andrew Selbst of the Electronic Privacy Information Center considers the Textalyzer a bridge too far – demanding to scan a phone without additional indications that the driver was using it with the risk that the driver could lose their license is not in keeping with the American justice system. There are better ways – ways that involve eliminating other possibilities and getting a warrant, not just jumping immediately to a phone scan.
The Beta Test
Currently, New York State is examining the technical and legal implications of the Textalyzer, including field testing the device and assessing whether the device can be used within the confines of the law. The device is backed by the Distracted Operators Risk Casualties (DORC) group and opposed by the NYCLU and Electronic Frontier Foundation (EFF), among others.
Ultimately, regardless of New York State’s decision about the device, a Supreme Court case could be down the road. For every person who wants a tool like the Textalyzer in use and to have clear consequences for distracted driving, there are others who will consider it a violation of privacy. Buckle in for a long fight.