Driver with Phone

Even though most states, including Oregon, ban texting and other kinds of cell phone use while driving, cell phone laws are sometimes difficult to enforce. With a device called a Textalyzer, police officers at the scene of an accident could tell if phone use was involved in the crash.

According to the U.S. Centers for Disease Control and Prevention (CDC), more than eight people are killed every day in the United States and 1,161 injured in crashes that are reported to involve a distracted driver. Including those not reported, the numbers are probably much higher.

Proving cell phone use during a crash can be difficult. Although it is standard procedure for both sides in a disputed vehicle crash to subpoena cell phone call records from the other side, securing cell phone records often takes time.

Textalyzer Would Determine Cell Phone Use at the Scene of an Accident

Modeled after the Breathalyzer, a device called a Textalyzer is currently being developed by Israel-based company Cellebrite. Tailored to laws in the jurisdiction in which it is used, it would determine at the scene of a crash, or afterward, if a driver had been using his or her phone illegally while driving.

A police officer at the scene of an accident would go to the driver and, with the driver still able to hold the phone, attach a cord to connect the Textalyzer to the phone. The officer would tap one button and, in about 90 seconds, the device would show the last activities, with a time stamp. Without downloading any content, the device would only display a summary of what apps were open and in use, and show screen taps and swipes to determine if there was an outgoing call or incoming call.

Privacy Advocates and Civil Libertarians Express Concerns

Controversies surrounding interception of cell phone data by law enforcement have delayed development and approval of the Textalyzer. Following leaks of secret documents in 2013 that revealed its controversial covert surveillance methods, the National Security Agency’s (NSA) spying tactics have been intensely scrutinized by privacy advocates and civil libertarians. Interference with communications signals is supposed to be prohibited under the Federal Communications Act, making the use of these devices by law enforcement in a legal gray zone.

The Stingray II, used by the FBI to track suspects, is one of many spy tools called cell site simulators used by government agencies to track mobile phones and gather information from them for law enforcement. Cell Site Simulators force devices to disconnect from their service providers’ cell sites to instead establish a new connection with the simulator. Although the FBI says that it does not use the tool to intercept the content of communications, the device can do that.

New York Senator Murphy Introduces Bill for Use of Textalyzer Technology

In 2016 New York Senator Terrence Murphy sponsored a bill calling for a Textalyzer technology to be used in the field after a collision, to see if a driver was cell phone distracted, without providing access to photos, messages, contacts and other private data.

As with the Breathalyzer, a driver would give “implied consent” for field testing of the driver’s phone to be conducted by a police officer at or near the time of the accident or collision. According to the proposal, a driver who didn’t comply could risk losing his or her license.

The group Distracted Operators Risk Casualties  worked with lawmakers on the bill with help from co-founder Ben Lieberman, whose son Evan was killed in 2011 in a crash with a distracted driver. Evan’s family said the driver who caused the crash initially said he fell asleep at the wheel. Months later, after subpoenaing phone records, the family learned that cell phone use caused the accident.

Assistant Speaker of the Assembly Felix Ortiz introduced the bipartisan bill which would help create a protocol for police to allow them immediate access to drivers’ cell phones. Using the Textalyzer technology, police would be able to determine if a person was on the phone at the time of the crash, without looking at any content on the phone.

New York Governor Cuomo Directs Examination of Textalyzer Technology

In July of 2017, New York state Governor Andrew Cuomo announced that he would direct the Governor’s Traffic Safety Committee to examine the Textalyzer technology, while considering the privacy and constitutional questions it could raise. The committee was set to hear from supporters and opponents of the technology, law enforcement officials and legal experts before issuing a report. The focus of the committee’s report would include the effectiveness of the technology, constitutional and legal issues and how the device would be used in practice.

“We want to make sure we consider all the impacts of the technology carefully to best ensure public safety and effective enforcement of the law,” said Terri Egan, executive deputy commissioner of the state’s Department of Motor Vehicles and active leader of the committee.

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