It had the trappings to suggest that it was yet another deep dive into bad law. It was named after a dead kid, Evan Lieberman. It gave the police another mystery tool, and one with a cool and utterly meaningless name, the textalyzer. It was enabled by the unprincipled concept of implied consent. And there was a press conference where New York lawmakers and a “group” with a really bad acronym, DORCs, made the announcement.
This is almost always how the stars align for the next new bad law. Almost.
But not always. The proposed law, this time, may not be a big deal.
DORCs co-founder Ben Lieberman, 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, has been working closely with Senator Murphy and Assemblyman Ortiz to implement the new law, known as “Evan’s Law.”
For weeks following the crash that resulted in Evan’s death, the driver’s phone was sitting in a junkyard, and police never retrieved the phone or phone records. Through his own civil lawsuit, Lieberman subpoenaed the phone records and discovered the driver had been texting while he was driving, leading up to the crash. Lieberman was surprised to learn that the local police force wasn’t to blame, but rather that this was typical because there’s a lack of an overall official, consistent police protocol to address this type of destructive behavior.
“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.”
As laws named after dead children go, this one falls short of the usual “but for” some egregious violation of the Constitution, “a child would still be alive” type of argument. Texting while driving, or distracted driving as its being called, isn’t a mysterious problem. It’s stupid and incredibly dangerous, and reflects the sort of selfishness that costs people their lives. It’s unlawful in New York, as it should be. Sorry, but your need to text “lol” plus an emoji is not worth my child’s life.
But this law wouldn’t have saved Evan’s life. Texting while driving is already unlawful. Rather, this law is a post hoc evidentiary gathering law.
Under the first-of-its-kind legislation proposed in 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 law requires drivers, after a collision that resulted in property damage or injury, to allow police to use this textalyzer to determine if the phone was in use immediately prior to the collision. It’s premised on implied consent, meaning that by taking advantage of the “privilege” of driving, a driver consents to this search of his phone. And the law precludes the police from obtaining the content of the phone use, but is limited to ascertaining whether it was used at all.
There is no new crime involved. There is a sanction for refusal to give up the cellphone for testing, the suspension of driving privileges. And the utility of the law is the collection of evidence, whether for civil or criminal purposes, such as reckless driving or vehicular homicide.
Ars Technica presents this new law with the title, First came the Breathalyzer, now meet the roadside police “textalyzer,” scary and clickbaitable. But the similarity in cool tool names, while unfortunate, obscures the distinctions. Unlike the breathalyzer, the textalyzer doesn’t serve to conclusively prove a crime occurred, isn’t irrefutable, doesn’t answer many of the questions and is a means to obtain information that is otherwise obtainable from the cellphone company.
If the textalyzer is used to obtain the content of communications, there would be a completely different problem, as that would constitute unlawful wiretapping, and 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. But the law proposed forbids that use, as it must to be constitutional.
But what if this new black box 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 subject to fairly easy challenge. Nor does it prove who was using the cellphone at the time, or whether it was being used “hands free,” as is permitted under law.
As laws go, it’s not a particularly effective one if its purpose is nail down the harm that caused an accident, And obviously, it does nothing to prevent an accident from occurring in the first place.
But for the piece of the law that requires a driver to give up his cellphone to the police for testing by the textalyzer, there is really little about the law that imposes any new burden at all. It facilitates the investigation, to the extent that use of the cellphone immediately prior to a crash can be determined at the scene rather than only after records are obtained, but that’s pretty much all it accomplishes.
Could this device be abused? Sure, and police abuse of, and lying about, other devices like the stingray gives rise to good cause for concern. That’s the price to law enforcement of getting caught lying, that the public refuses to believe that you won’t break the law when it serves your purpose.
But is fear of abuse enough of a reason to be outraged at this proposed law? Probably not. If police were inclined to engage in illegal wiretapping of cellphones at crashes, they have the means already and wouldn’t need a new law. Despite “Evan’s Law” having all the indicia of a legal disaster, it’s just not that big a deal. It doesn’t do much good, but it doesn’t do much harm either. And if someone is killed because a driver was stupid and selfish enough to be texting, don’t shed too many tears for the poor driver being nailed for his recklessness.