Debate Forum: 4/26/16

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Drive me crazy

NY bill suggests textalyzer tech for distracted drivers
By Sarah Sidlow

Term to know: Textalyzer.

As in, technology that detects whether your cell phone is to blame for your car accident; like a breathalyzer for texting.

And New York Senator Terrence Murphy and Ben Lieberman, co-founder of Distracted Operators Risk Casualties (DORCs) want New York police officers to have it. Their bill, Senate Bill S6345A—also known as “Evan’s Law” in reference to Lieberman’s son who died in a collision caused by a distracted driver—is currently in committee, and would require drivers involved in a crash to submit their phones to roadside testing, for evidence that it was being used while driving.

There’s not much out there on the Textalyzer tech so far, except that it’s being developed by Israeli mobile forensics firm Cellebrite.

Why is that name familiar? Cellebrite is thought to have helped the FBI crack the San Bernardino shooter’s iPhone in a recent contemptuous legal battle over law-enforcement access and that all-important user privacy.

Cellebrite assures that whatever tech it develops will only be able to tell police if the phone was in use prior to an accident—it won’t give the company or the police access to other personal details.

But the proposed legislation has a lot of people saying, “sure, we’ll see.”

The Cellebrite name isn’t exactly synonymous with “privacy,” it seems.

Especially since the tech, which Cellebrite says has been in use by law enforcement “for years,” can actually allow police to “conduct a forensically sound, logical extraction of device texts, call logs, and emails.” While it appears the New York law wouldn’t allow police to dig that deep, that’s a lot of trust to put into the integrity of individual officers.

Others claim the law already sides with the government on this one—police can request court orders in instances like these, and a federal appeals court ruled last year that police officers don’t need a warrant to get your cell records.

But let’s be real: the numbers involving cellphone use and driving are terrifying.

The National Safety Council reports that more than one in four car crashes in America are likely caused by cell phone use. The council estimated that talking on the phone led to 1.2 million wrecks in 2013, and texting was involved in at least 341,000 more. That’s a lot of people who probably regret using their phones while driving.

The NSC also estimates that texting while driving raises the likelihood of a crash by eight times—and the trend is rising.

A survey released by AT&T in May, 2015 showed that about 70 percent of respondents use their smartphones while driving—texting was most common, but other activities like email, Facebook, Twitter, Snapchat, Instagram, video chats and selfies all made the cut.

Perhaps, supporters say, this is one of those cases where it’s OK to give up a little bit of privacy for the benefit of millions of people on the road—and if this kind of law will reduce dangers on the road, it’s a sacrifice they’re willing to make.

Reach Dayton City Paper freelance writer Sarah Sidlow at


By Tim Walker

Cell phones and automobiles, everyone agrees, can be a deadly combination when used at the same time. Ten percent of all drivers 15-to-19-years-old involved in fatal crashes were reported as “distracted” at the time of their crash, according to a 2013 report by the National Highway Traffic Safety Administration. The same report stated that 10 percent of all U.S. auto crashes involving fatalities in 2012 involved distracted driving, and that those crashes resulted in 3,050 deaths. In 2013, the NHTSA numbers were even worse—3,154 dead, 424,000 injured involving distracted drivers. In 14 percent of those fatal distraction-related crashes, the driver was manipulating a cell phone when the accident occurred.

Ben Lieberman of New York has been a staunch advocate against distracted driving since he and his family lost their 19-year-old son, Evan, in a 2011 collision caused by a distracted driver. Lieberman, along with Deborah Becker, formed DORC, which stands for Distracted Operators Risk Casualties. Recently Lieberman worked with New York’s Assistant Speaker of the Assembly Felix Ortiz to introduce “Evan’s Law,” a bipartisan bill which would help establish a protocol for police and allow them immediate access to drivers’ cell phones. Under the first-of-its-kind legislation, New York drivers involved in accidents would have to submit their phone to roadside testing from a textalyzer to determine whether the driver was using a mobile phone ahead of a crash. In a bid to get around the Fourth Amendment right to privacy, the textalyzer allegedly would keep conversations, contacts, numbers, photos and application data private. It will solely say whether the phone was in use prior to a motor-vehicle mishap. Further analysis, which might require a warrant, could be necessary to determine whether such usage was via hands-free dashboard technology and to confirm the original finding.

“The general public knows distracted driving is a problem, but if people knew the extent of the damage caused by this behavior, they would be amazed,” Lieberman said. “With our current laws, we’re not getting accurate information because the issue is not being addressed at the heart of the problem—with the people causing the collisions.”

Obviously, the new legislation immediately raised concerns about possible abuse and a person’s right to privacy. The similarity in handy device names—breathalyzer, textalyzer— obscures the distinctions between the two. Unlike the breathalyzer, the textalyzer doesn’t serve to conclusively prove a crime occurred, is in no way irrefutable, doesn’t answer many questions and is a means to obtain information that is already obtainable from the cellphone company.

If the textalyzer is used to obtain the content of communication, there would be a completely different problem, as that would require a warrant. That the device could be made to do so, and police could use it for that purpose, is certainly worthy of concern. Of course, the proposed law forbids that use, as it would be unconstitutional—and we all know that law enforcement officers always follow the law, right? Could this device be abused? Sure, and police abuse of, and lying about, similar devices gives rise to good cause for concern. That the public refuses to believe that you won’t break the law when it serves your purpose is the price law enforcement pays when they’re caught lying to the public they’ve sworn to defend.

And what if this new device is wrong? That can be proved through cellphone records showing that there was no use of a phone when alleged. Unlike the breathalyzer, the textalyzer is hardly conclusive and will certainly be subject to fairly easy legal challenge. Does it prove who was using the cellphone at the time, or whether the device was being used “hands free,” as is permitted under the law as long as the driver is over the age of 18? No.

As laws go, “Evan’s Law” is not a particularly effective one if its purpose is to nail down the harmful event that caused an accident. And obviously, it does nothing to prevent the accident from occurring in the first place.

The textalyzer, and “Evan’s Law” that supports its use, are simply another means of prying into an individual’s private life, for no good reason other than because Big Brother wants to do so. All of the information that this device would provide to police is already available through court channels, and giving our blessing to a piece of legislation that so obviously could be misused and corrupted is simply giving away too much for no good reason.

Tim Walker is 50 and a writer, DJ and local musician. He lives with his wife and their two children in Dayton, where he enjoys pizza, jazz and black T-shirts. Reach DCP freelance writer Tim Walker at

Deadly distractions

By Don Hurst

Whenever we debate compromises between safety and privacy we need to make sure we understand the depth of the problem we are trying to solve. Research shows that texting while operating a motor vehicle impairs a driver as much as having a .08 blood alcohol level. According to a U.S. Department of Transportation study from 2013, at any given moment over 660,000 people use a cell phone while driving. That’s over half a million people driving as impaired as drunk drivers.

Cell phone use is the cause of at least 25 percent of all accidents in the United States. When a driver checks their phone they have their eyes off the road for an average of five seconds. That doesn’t sound like much. Just five seconds—but when traveling at 55 mph while checking your phone you cover the length of a football field, blindfolded.

A lot can happen. A lot does happen. According to the U.S. government’s website, distracted drivers killed 3,179 people and injured 431,000 in 2014. Drunk driving kills more people, but over 3,000 dead each year by irresponsible driving is unacceptable. It’s like having 9/11 every year just because people want to check their Tweets.

Legislation like the New York State Senate’s “Evan’s Law” aims to decrease those casualties by treating cell phone use like drinking and driving. Many states issue driver’s licenses under the “implied consent” doctrine, meaning all drivers consent to a DUI test if lawfully arrested for suspicion of DUI. Refusal results in the state revoking the driver’s license. New York intends to apply the implied consent doctrine to cell phone use.

A phone has to “blow into the tube” of new “textalyzer” technology to find out if it was used at the time of an accident. If a driver refuses then New York will revoke their license. Opponents believe this is an invasion of privacy and unconstitutional. Actually, “Evan’s Law” does not give the police any more power than they already have. It just applies that power to another serious public safety issue.

The U.S. Supreme Court has long upheld that driving is a privilege, not a right. In the U.S. vs. Jones, the government asserted that the reasonable expectation of privacy that protects against unlawful search and seizure is significantly decreased while driving on public roadways. Another Supreme Court case, Michigan Department of State Police vs. Sitz, defends the constitutionality of no probable cause sobriety checkpoints. The Court claimed that checkpoint stops did not violate civil rights because the contact only lasted about 30 seconds to conduct the breathalyzer test. The protection of public safety trumped the minimally invasive procedure.

“Evan’s Law” actually holds law enforcement to a higher standard than current DUI laws. Officers can only use the “textalyzer” after a vehicle accident. Since the cell phone plays a part in over 25 percent of all accidents then it is not unreasonable for law enforcement to suspect an at-fault driver may have been using a phone. The police contact isn’t unconstitutional. The accident gives the investigating officers enough probable cause.

The real issue isn’t the police contact; it’s the reach or possible overreach. The law does not allow unfettered access to a suspect driver’s cell phone. Investigators cannot read text messages, flip through photos and check out social media history. The scope limits the analysis to the generic incoming and outgoing logs of the phone.

Law enforcement can already check that without a court order. The Federal 11th Circuit Court asserted in U.S. vs. Davis (2014) that the Constitution does not protect call log information. When messages travel through cell towers they automatically enter a log owned by the cell phone provider. Through the “third party” doctrine police don’t require warrants for that kind of information.

The Supreme Court has said that to search the physical phone for information that is not maintained by a third party, such as the content of what you send, requires a warrant. Activity logs, no warrant. Content of messages, warrant. As long as these texting laws limit the scope of the search to third party available call log information and stick to the implied consent doctrine used in existing DUI laws then constitutional challenges will be unsuccessful.

Couldn’t law enforcement use this tool to dig deeper into a phone and violate civil rights? Maybe. My opinion is that a company would not want to risk lucrative civil suits by providing law enforcement with a tool that can be easily abused. Litigation against companies that manufacture tasers and less lethal weapons is all the incentive for Cellebrite to limit their technology’s effects and to properly train law enforcement in its use.

According to the U.S. Department of Health, a mixture of legislation and public awareness slashed DUI fatalities by half since the early 1980s. These types of laws work. They keep people safer without an unreasonable infringement on civil rights. If we could get a similar reduction in deaths, then we’ll be saving around 1,500 people a year.

“Evan’s Law” just applies already in-place procedures to the growing problem of distracted driving without truly expanding the power of the police. The police have always been able to obtain cell phone activity logs to see if the phone was active at the time of an accident. All the law adds is a new tool for police officers to use and the application of implied consent doctrine to cell phones.

Don Hurst is a combat vet and a former police officer. He now lives in Dayton where he writes novels and plays. Reach DCP freelance writer Don Hurst at

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Tim Walker is 51 and a writer, DJ, and local musician. He lives with his wife and their two children in Dayton, where he enjoys pizza, jazz, and black T-shirts. Reach DCP freelance writer Tim Walker at

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