Do today's cops need a 'Textalyzer' test?

A new app enables police to scan for cellphone use. In New York, it's generating interest among lawmakers – and worry from privacy advocates. 

Bill Sikes/AP/File
A sign over the Massachusetts Turnpike in Boston alerts motorists to a new state law banning texting while driving. Such laws have proven difficult to enforce, but New York lawmakers hope that a 'Textalyzer' will change that.

The New York legislature has taken up a bill that will make it easier for police officers to tell if texting caused a motor vehicle accident.

This effort has its roots in a 2011 Hudson Valley crash, which killed 19-year-old Evan Lieberman. The driver of the car he’d been riding in told police he had fallen asleep behind the wheel. They had no reason to think otherwise until Evan’s father, Ben Lieberman, filed a civil lawsuit to subpoena his phone records, which revealed that he had been texting.

That year, 354 other Americans also died in accidents involving a cellphone, according to the National Highway Traffic Safety Administration (NHSTA). By 2015, that number had edged up to 442, and a total of 69,000 crashes had taken place with a cellphone in use.

To fight this trend, Mr. Lieberman is now backing a bill in New York’s Senate and General Assembly known as "Evan's Law. It would roll out a new technology, the “Textalyzer,” that can test whether a cellphone had been in use in the moments leading up to a crash.

“While technology has created this grave danger,” the bill explains, “it also has the capacity to aid law enforcement in tackling and eradicating distracted driving caused by mobile telephones and personal electronic devices.”

New York and most other states have banned texting while driving for years. But according to the Council of State Governments, “some question the degree to which such laws can be enforced and the efficacy of the tools and strategies available to them.” Nebraska’s law, for instance, “can be difficult to enforce because motorists can claim they are performing some other task on their phone instead of texting. Proving a driver was texting may require a subpoena of cellphone records, something a judge would be unlikely to grant unless an accident is involved.”

And even when an accident is involved, access to records isn’t always guaranteed. After the 2011 crash that killed Mr. Lieberman's son, the driver’s cellphone sat in the car, in an impound lot, for months, until Lieberman subpoenaed the records. Speaking with NPR on April 27, he says that the process of securing the warrant can deter police from accessing this evidence.

"We often hear, 'just get a warrant' or 'just get the phone records....' The implication is that the warrant is like filling out some minor form.... It's not. In New York, it involves a D.A. and a judge.”

To make testing easier, Mr. Lieberman asked mobile-software firm Cellebrite to develop an app that enables cops to quickly scan for possible cellphone use: the Textalyzer.

On April 24, Cellebrite engineer Lee Papathanasiou demonstrated a prototype of the app for New York State lawmakers. Plugging a smartphone into a tablet, he ran a minute-long scan that produced a breakdown of recent communications on the phone: its source (such as WhatsApp or SMS), a timestamp, and whether it had been outgoing or incoming. 

Papathanasiou pointed out that, if an officer asked to run such a test during a traffic stop, the driver could hold on to his or her phone while it was plugged in to the textalyzer-equipped device. He also emphasized that it doesn’t disclose the contents or recipients of the phone owner's messages. “It’s not even accessing the databases where that data would be in.”

Evan's Law still needs to pass, and the software needs several months of further development, before the Textalyzer can hit the streets. But already, road-safety advocates are excited about the technology. Deborah Hersman, who heads the nonprofit National Safety Council, told NPR that "the textalyzer is going to be a game-changer when it comes to handheld devices."

Referring to the devices that police officers use to screen for intoxication, she predicts that "it will be the Breathalyzer of our electronics." If that’s the case, the Textalyzer might not just aid crash investigators. It could also convince more drivers to put their phones away in the first place. 

According to researchers at Texas A&M University, “a successful [sobriety] checkpoint program increases the risk of arrest (real or perceived), and influences a motorist to choose to not drive while intoxicated. As a result of this deterrent effect, checkpoints regularly decrease impaired crashes by 15% – 20%.”

However, some civil-liberties advocates say that the Textalyzer’s drawbacks outweigh its promise.

On April 25, the New York Civil Liberties Union (NYCLU) issued a memo opposing the bill. In addition to questioning its fairness and effectiveness, the NYCLU points out that, in the 2014 case Riley v. California,  “the Supreme Court held that the Fourth Amendment requires law enforcement to obtain a warrant to search the content of a cellphone.” 

Under New York’s bill, the “Textalyzer” would be covered by the “implied consent” doctrine, in which a driver’s license recipient automatically grants consent to possible future breathalyzer tests. It’s not yet clear whether this strategy – or the app's only displaying “metadata” of calls and messages, not their content – will pass muster with the courts.

But the bipartisan group of lawmakers supporting Evan's Law is determined to make it happen. Matt Slater, chief of staff for New York State Senator Terrence Murphy, a Republican sponsor of the bill, told The New York Times, “It’s monumental if we can get this done ... we’re trying to make sure safety and civil liberties are equally protected.”

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