Issues to Watch

The “Textalyzer”: A Violation of the Fourth Amendment or a Life Saving Device?


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The “Textalyzer”: A Violation of the Fourth Amendment or A Life Saving Device?

Marleigh Davis*

With distracted driving statistics revealing the large number of people who dangerously choose to use their cell phones while driving, the question arises of how many accidents occur because of this phenomenon and whether they could be prevented? New York’s legislature is attempting to take action to help end this common practice with a device called a “Textaylzer.” N.Y. Sen. S6325A, 2016 Leg., Sess. (N.Y. 2016). Road patrol officers would each have one of these devices which would be used to see if an individual in a car accident was using a phone at the time of the accident or immediately before it. See id. Is this device, however, constitutional after the Supreme Court held in 2014 that police officers need a warrant to search a phone? See Riley v. California, 134 S. Ct. 2473, 2495 (2014). Can this device be easily compared to the Breathalyzer that is used in the fight against drunk driving? Noah Feldman, Breathalyzers, Textalyzers and the Constitution, Bloomberg (Apr. 28, 2016, 11:56 AM), https://www.bloomberg.com/view/articles/2016-04-28/breathalyzers-textalyzers-and-the-constitution.

The New York Textalyzer Legislation

The New York Textalyzer Bill states that an electronic scanning device, that is approved by the commissioner of criminal justice services, will be used to determine whether the operator of a motor vehicle was using a mobile telephone or other electronic device either at or near the time of the accident or collision, which provides the grounds for the testing. N.Y. Sen. S6325A, 2016 Leg., Sess. (N.Y. 2016). The police officer would request the mobile device and any person who operates a motor vehicle in the state is deemed to have given implied consent. Id. If a person refuses to surrender the phone, his or her driver’s license will be immediately temporarily suspended—whether or not the person is guilty of using a mobile device while driving—until a hearing is held and an application for a court order to compel surrender of a phone for testing may be made. See id. A person whose license has been revoked due to being found guilty of using a mobile phone while driving as a result of the “Textalyzer” scan will not have his or her driver’s license restored for at least one year, and the person will be liable for a civil penalty for five hundred dollars. Id. If there is a second offense within five years, the individual is then subject to a $750 fine. Id.

Riley and Cell Phone Privacy

In Riley, the Supreme Court discussed that the storage capacity of cell phones has consequences for privacy. Riley, 134 S. Ct. at 2489. A cell phone collects in one place many different types of information, such as addresses, bank statements, locations, etc. See id. The Court also discussed, in detail, that it is reasonable to expect incriminating information will be found on a phone regardless of the police officer’s purpose for looking at it. See id. Additionally, something as simple as call logs typically contain more than just phone numbers—they may include identifying information of an individual. See id. at 2493. Riley discussed that information on a cell phone is not immune from search; a warrant is generally required for such a search under the Fourth Amendment of the United States Constitution. See id. at 2494. The Court stated:

The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple-get a warrant. Id. at 2495.

Riley makes clear that cell phones cannot be searched under the Fourth Amendment unless a search warrant has been obtained.

The Argument

It is argued that Fourth Amendment rights are not violated with the use of the Textalyzer because no actual data is being mined by the technology, and the bill states that the electronic scans will not include the content or origin of any communication, images, or electronic data viewed on the phone. See, e.g., N.Y. Sen. S6325A, 2016 Leg., Sess. (N.Y. 2016); Karen Turner, A Proposed ‘Textalyzer’ Bill Might Give Cops the Right to Access Your Cellphone, Wash. Post (Apr. 13, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/04/13/a-proposed-textalyzer-bill-might-give-cops-the-right-to-access-your-cellphone/. Proponents of the Textalyzer Bill have pointed out that it is unrealistic to get a search warrant for every crash and that the Textalyzer can be used right in front of the driver, which eliminates the risk of the officer getting unlawful information off the phone. See Matt Richtel, Texting and Driving? Watch Out for the Textalyzer, N.Y. Times (Apr. 27, 2016), http://www.nytimes.com/2016/04/28/science/driving-texting-safety-textalyzer.html?_r=1.

Proponents of the Textalyzer are comparing it to the breathalyzer, which is also legal through an implied consent theory, arguing that texting while driving is as dangerous as drunk driving and therefore needs to be taken as seriously. Id.

Opponents of the Textalyzer Bill have strong concerns regarding these devices. There is concern that the device would store more private information than what is being let on and that people would end up being punished for using their device in lawful ways while driving. See Turner, supra. The director of the New York Civil Liberties Union stated that, “[t]he technology may in fact be scanning through the content of people’s phones and collecting data, even if that is not apparent. And even if you finely tune the technology, there are many cases where people will be fined for lawful activity.” Id. Presumably, the Textalyzer would have to look at all your applications to determine whether the phone was being used while driving and determine if the application you were using was being used legally. Therefore, the device would need to assess, to some degree, more than simply whether the phone was being used. Feldman, supra. As we know, technology is not perfect. What will happen, for example, when a driver attempts to send a text message prior to driving but the phone is delayed in the delivery of the message and it is time stamped with the wrong time?

Conclusion

It is indisputable how dangerous and prevalent distracted driving has become, and the fact that New York legislators are trying to find a resolution to the issue is understandable. The Textalyzer could very well be a deterrent to getting people to stop using their mobile phones while driving, but the device’s ability to scan through citizens’ phones may also be a violation of the Fourth Amendment. If the Textalyzer Bill becomes law, many states will likely follow in New York’s footsteps with their own Textalyzers. It is possible that this could be a question before the Supreme Court in the near future.

* Marleigh Davis is a second-year law student at the University of Baltimore School of Law where she is a staff editor for Law Review. In the summer of 2016, Marleigh interned for the Women’s Law Center of Maryland (POARP).

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