Balancing the scales of justice is never easy, especially when it comes to weighing personal freedoms against public health.
But, never one to turn down a challenge, New York State is willing to try.
The home of Lady Liberty is set to debate just how much of it will be given to drivers there, following a late-July directive issued by Governor Andrew Cuomo for law enforcement officials to examine the potential benefits of a “textalyzer”—a machine allowing police to check whether a phone has been used by someone from behind the wheel.
At stake is the chance to prevent thousands of motor vehicle deaths and injuries each year, but skeptics are more worried about avoiding a slippery slope that could give officers unfettered access to personal information.
With several months before the technology is ready for release, New Yorkers now need to decide whether to give more weight to individual liberties or justice for all.
Named after the more-famous device that calculates blood alcohol content, the textalyzer has been pitched as a similar tool to help curb another crisis on the roads: Distracted driving.
Once plugged into a phone, it can let an officer know if a driver was texting, emailing, looking online, or performing any other mobile activities, all within a minute.
Proponents have praised the device’s Breathalyzer-like potential to keep drivers honest about their behavior behind the wheel—and keep more motorists alive.
Distracted driving was responsible for 3,477 deaths nationwide—including 12 in New York—in 2015, the last year for which data are available, according to the National Highway Traffic Safety Administration.
At the time, the number represented a third straight year of increasing fatalities in cell phone-based crashes and comprised nearly 10% of all motor vehicle deaths across the country. (Comparatively, drunk driving was responsible for about one-third of all roadway deaths in 2015.)
Still, many are worried that, though well-intentioned, the idea may go too far, invading the personal liberties of drivers by forcing them to surrender a possession privy to such private information.
Civil rights advocates have said that police already have an option to examine cell phone usage: Search warrants. Their argument is bolstered by a 2014 Supreme Court decision in which the justices unanimously declared that phones were different from wallets, briefcases, and vehicles, and therefore not subject to the same “limited initial examination” as those objects, which can be made warrant-free. (That argument may be short-lived, however, as aspects of that case will come before the Court again this fall.)
Supporters say the textalyzer won’t let police open a phone without the password or know what someone was saying, doing, or looking at specifically—just that their phone had been used in a particular way. But some security experts remain skeptical that no personal information would leak during the procedure. And their doubts may be buoyed by the reputation of the company developing the technology.
The textalyzer is the brainchild of Israeli tech firm Cellebrite, which may not be a household name, but is well known in the world of law enforcement.
The company specializes in “mobile forensics,” an emerging field involving the collection of evidence through the recovery of information and data off of cell phones.
Indeed, Cellebrite offers a plethora of options for extracting such tidbits from the mobile devices on its website, and previous reports show that law enforcement agencies across the country are snapping it up, spending millions on the company’s devices, along with upgrades, renewals and trainings related to the technology.
Cellebrite was also widely reported to be the firm responsible for helping the FBI crack into the password-protected iPhone belonging to the San Bernardino shooter in 2015. Although those claims were never officially confirmed, the company has advertised tools that would allow buyers to unlock cell phones.
Still other Cellebrite products let users access everything from logs of social media messages, texts, and emails, to time-stamped previous location markers, to deleted information like texts and photos.
Textalyzer fans say the technology won't go that far—and without a prototype to examine, the depth of information officers could deign from the device remains unclear. What's indisputable, however, is that the current methodology for enforcing distracted driving is in need of improvement.
Smart Phones, Dumb Options
Distracted driving is a growing epidemic, and an issue in the crosshairs of legislators nationwide.
Texting while driving is illegal in 47 states, while 14 ban hand-held phone usage behind the wheel, and 38 bar certain drivers from using phones at all.
But those laws have failed to strike fear in the heart of motorists. An estimated 660,000 people use electronic devices while operating a car every day, according to the NHTSA.
And the cops hoping to stop this new age curse are left with little more than old school tricks and tactics to catch perpetrators red-handed. They face twin problems: That people who see a police car or officer usually stop texting immediately, and those who don’t can commit the offense out of an officer’s line of sight anyway, as a driver is often holding their phone close to their lap when sending messages.
To combat these issues, many officers find themselves reverting to sleight-of-hand style maneuvers that let them get a more honest view of what’s transpiring within the vehicle.
Some have patrolled from trucks or trailers—and even overpasses—to get a higher vantage point, and therefore see the unlawful act more easily. Others have masqueraded as panhandlers to get close to the cars, undetected, while still other officers have found an easier time catching texters by bicycling up to cars at stop lights.
The textalyzer, then, seems to at least offer some continuity between the type of digital crime being committed and its detection.
But whether or not New York adopts the device, it’s clear there’s still one message motorists there, and across the country, need to receive: Texting and driving is dangerous—and deadly.