Evan’s Law: Just Not A Big Deal

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.

27 thoughts on “Evan’s Law: Just Not A Big Deal

  1. Ben

    I’m not sure I agree that texting while driving should be against the law. Carelessly causing an accident that kills should absolutely be against the law, regardless of the reason. As the old adage says, “If there is no victim, there is no crime.” If you’re texting and driving, and cause no harm, as most instances of texting and driving do, why should that be a crime?

    1. SHG Post author

      Consider this an important lesson:

      1. You don’t have to agree. You don’t get a vote.
      2. It’s already against the law. It’s not the issue.
      3. The inability to distinguish one point from another is the hallmark of someone who belongs at reddit rather than here.
      4. Outcome (the harm that did or didn’t happen) is an aggravating factor, but laws prohibit conduct, not outcome, since the person who violated the law can only control his conduct, not the fortuitous result.
      5. It’s never a good thing to try to make people stupider. Don’t do it.

      1. Shetland E Ferus

        I’m not sure he’s trying to make people stupider. That’s just a foreseeable outcome of his conduct.

        1. SHG Post author

          Point taken. I may have been unduly harsh, and I ascribe no bad intent to Ben. He actually made another comment that was quite interesting, but significantly off-topic, so it got trashed. But he could well turn out to be an interesting and thoughtful commenter.

  2. Tim Cushing

    I think there’s two factors here that will ensure this law (if passed) won’t face serious challenges in court.

    1. Tying it to implied consent and put to use only AFTER an accident has occurred means its use is investigatory, rather than exploratory. (i.e., the “textalyzer” can’t be put to use during traffic stops as a way of justifying the stop… although I imagine the forensic tool may be put to use that way as well.)

    2. The fact that New York law forbids almost EVERY activity a person could use a phone or other electronic device for while driving. This differentiates it from the Indiana anti-texting law the Seventh Circuit Appeals Court [also different district, obviously] found could not be used to justify stops. In that case, the only forbidden activity was texting, but drivers were free to make calls, listen to music, etc. while driving.

    From the decision:

    “The government failed to establish that the officer had probable cause or a reasonable suspicion that Paniagua was violating the no-texting law. The officer hadn’t seen any texting; what he had seen was consistent with any one of a number of lawful uses of cellphones. The government presented no evidence of what percentage of drivers text, and is thus reduced to arguing that a mere possibility of unlawful use is enough to create a reasonable suspicion of a criminal act. But were that so, police could always, without warrant or reasonable suspicion, search a random pedestrian for guns or narcotics. For it would always be possible that the pedestrian was a bank robber, a hired killer on the loose, a drug lord or drug addict, or a pedophile with child pornography on his thumb drive. “A suspicion so broad that [it] would permit the police to stop a substantial portion of the lawfully driving public … is not reasonable.””

    But this isn’t being used to justify stops. (I’ll add “yet…”) It’s only being used to investigate the cause of an accident. But it will presume suspicious activity.

    Because it appears to be a Constitutional law (and not a stupid law, like Indiana’s), it will probably survive most legal challenges. That doesn’t necessarily mean it’s a good law, but it’s much better than it could have been.

    Now, I do have concerns about the forensic software. Considering New York has outlawed pretty much ANY phone/device activity while driving (phone calls, email, taking pictures, playing games, use for “present or future communications,” web browsing, etc.), a tool that only detects “use” is problematic. Of particular concern is the fact that “retrieving email, text messages, instant messages or other electronic data” is forbidden while driving. Any number of passive functions performed without user interaction would fit this description — and if the tool is simply looking for “activity,” passive receipt of communications could be viewed as violating NY’s distracted driving law as well as the new one. Add the new law and tool to the existing wording in the distracted driving law and you’ve got a recipe for false positives.

    It will have to go deeper than a surface scan to determine what sort of activity it is, and that’s where the assurances of Cellebrite (and those pushing the law) fall a little flat. It would seem to be a bit more complex than just looking for “activity,” because that’s bound to result in false positives. Sure, the scan results can be challenged, but not until a person has been charged and appears in court. The analyzer’s specifics need to made public if it’s going to be deployed after every fender bender — normal situations where on-site investigations are normally minimal and perfunctory.

    I don’t necessarily feel this tool will be abused. But I do feel if there’s no transparency on the tool’s abilities/shortcomings, then there’s no reason to trust its findings.

    1. SHG Post author

      I suspect this will be used far more in personal injury cases than criminal, where the proximate cause of a crash is the big liability issue. As the scan resolves little, it’s not going to be major factor in criminal prosecutions, where they have easy access to cellphone records already. It’s materiality is clearly limited.

  3. Erik H.

    When you say “If police were inclined to engage in illegal wiretapping of cellphones at crashes, they have the means already” that is simply not true. They can run Stingrays, of course, but they would have to preemptively set it up before the crash in order to get your information, which obviously isn’t practical. They can certainly demand you give them your password but they can’t otherwise access a phone.

    Moreover, most uses of a phone are legal–and all are, absent a warrant, presumptively private. Requiring you to submit your phone to police for inspection seems pretty far down the “prove you weren’t guilty” angle. That should concern you generally. Not to mention that the police will then have quick access to other evidence–nude selfies, texts about pot smoking, jokes about blowing up Obama, texts about how folks hate the cops, etc.?

    Sure, it “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 since when are YOU of all people focused on “facilitating the investigation” when they haven’t yet found probable cause or gotten a warrant? I mean, it would “facilitate the investigation” if they promptly went to the house of every person in an accident and tossed it, and strip-searched every resident, to make sure there was nothing illegal about the crash… but so what?

    1. SHG Post author

      Ah, nuts. You’re back to saying stupid stuff again. Just when I think it’s safe to let you comment, you remind me that you have no clue what you’re talking about, but that doesn’t stop you. Protip: Writing “this is simply not true” doesn’t make it not true, it just tells everyone else that you’re a moron (hint: they could use the Textalyzer, which already exists, without an authorizing law). Don’t do that to yourself. It will make your mommy sad.

    1. david

      Hmmm . . the link says I need admin access to view the Rules. Could this be an application of Schrodinger’s principle designed to make stupid commenters heads explode?

  4. phroggie

    According to the proposed legislation, the only data that the police are prohibited from retaining is: “… the content or origin of any communication or game conducted, or image or electronic data viewed, on a mobile telephone or portable electronic device” [immediately prior to or since the vehicular PD/PI has occurred].

    So, the cops will now legally be able to scrub all of the data from my device, but are only mandated to not view retain any data that was displayed on-screen or communicated within the previous (let’s call it) 60 minutes. This does not even come close to preventing them from keeping contact data, GPS history, SMS contents, authentication credentials for off-device storage (Facebook/iCloud/Drive/DropBox/etc), remembered Wi-Fi networks, and the risqué picture messages the arresting officer’s girlfriend sent me last week.

    You’ll forgive me if I don’t share your laissez-faire attitude about this one.

  5. Noxx

    I am with the naysayers on this one. The SMS data and time stamps can be obtained through the service provider, a process which is hardly onerous. This legislation creates a large potential data exposure in order to save the investigating party a relatively small amount of labor.

    From FLIR to Stingray, it has been demonstrated time and time again that the powers that be can be expected to overstep their boundaries if the technology is available to do so. I expect no different in this case.

    1. SHG Post author

      Paranoia is unattractive. Then again, even paranoids have enemies.

      I expect a lot of readers here will have a knee-jerk reaction to the use of any technology that collects any information and is subject to any potential abuse. It’s understandable. But then, is it a reasonable response that law enforcement can never use any tech without a warrant if there is any possibility of abuse? When we focus too much on one side, we forget that bad things happen to real people. We defend people’s rights and the Constitution. We do not support bad things happening to real people.

  6. Erik H.

    The timing is important. There’s a greater risk of abuse when there is the most discretion.

    Compare “gets a warrant, prosecutor finds out later that there were anti-cop texts and offensive porn on the phone.”
    “cops on scene, who have not yet written a report, find anti-cop texts and offensive porn on the phone.”

    It’s extra-idiotic because it’s not necessary. Just pass a law authorizing the police to automatically obtain metadata for texts and phone call timing in all accidents involving injury, via subpoena. The cell phone provider can give that without any fuss. Hell they can probably give it digitally. There’s no need to get it off the phone.

    You still get 99% of what you want, but you lose the liberty intrusion. You won’t capture things like in-app phone usage but you won’t get that anyway.

  7. pavlaugh

    I’m arguing over diction here I guess, but I’d clarify that the new law itself doesn’t seem to “require” the suspect to give up his/her phone. According to the dicta in Riley v. California, cops can seize the phone anyway to prevent destruction of evidence of the the crime. And then just get a warrant. Evan’s Law is really just providing a stick for non-compliance with a police officer’s request for a consensual search.

    You say, “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.” Do you mean if the textalyzer does that without the owner’s knowledge and consent? OK, then I follow you. But if the owner consents to a roadside search of the contents of his phone, it’s completely consensual. This law is modeled after the breathalyzer laws. At least in my state (correct me if it’s different in NY), the roadside breath test is completely consensual. Yeah, there are consequences for refusal (revocation of license), but the suspect is informed of his/her right to refuse the breath test. Looking at the textlyzer law, it’s modeled the same way. So any search done with the textalyzer is consensual. I think the textalyzer law could have gone further, could have “authorized” a search of the contents of the phone–i.e., premised consent to a search on the revocation of driving privileges.

    But if the cop says “give me your phone” and then runs the textlyzer on the phone, that seems to me like a non-consensual search, warantless, and potentially prohibited by the Fourth Amendment. The fact that the search is smaller in scope doesn’t make it any less of a search. The fact that the search keeps data “private” doesn’t “get around” the Fourth Amendment (though perhaps, just maybe, such a minor “private” sweep of the phone would be considered reasonable under the Fourth Amendment).

    So yeah, the law doesn’t seem like a big deal. It isn’t. And that’s patently obvious [Ed. Note: Insert abelist slur] from the article you quote, which suggests “the local police force wasn’t to blame” in the same sentence that says the local police force failed to have a proper protocol for seizing evidence of a crime. Evan’s Law doesn’t do anything to enable what should have happened in the first place–officers seize the phone while searching the vehicle incident to arrest and then obtain a warrant for its contents.

    1. SHG Post author

      I’m not as big a fan of the implied consent argument as you are. It’s the law, but I don’t agree with it. If the concept is viable, then the legislature could insert any right it wants and coerce a driver into trading it off, or suffering the consequence of loss of driving “privilege.” With that caveat, it’s patently obvious [you should have told me what word you preferred] you’re right, that this aspect of the law mirrors the breathalyzer in that you can refuse, but suffer the consequences.

      1. pavlaugh

        Perhaps I have overstated the status of implied consent laws.

        There appears to be an important distinction between the breathalyzer implied consent law and the textalyzer law. At least how the breathalyzer law works in my state (and I suspect it’s the same in NY), the accused must have been arrested for the DWI offense before the implied consent statute kicks in. So there must already be probable cause for DWI before the accused risks licence revocation.

        With the textalyzer, there is no such requirement. Not every accident is evidence of criminal conduct such as reckless driving or criminally negligent homicide. But the textalyzer is required for every person “involved” in the accident every time there is an accident resulting in property damage. So the statute applies even when the accident is the result of simple negligence or no fault at all of the driver involved. Unlike the breathalyzer statute, the textalyzer statute will be used to collect data for the purpose of establishing probable cause, not to gather evidence of a crime for which the accused is already arrested.

        The textalyzer law appears to expand implied consent law in slight but very real way.

  8. Dan

    What if you turn the phone off, otherwise put it out of sight, then imply to the investigating officer that you are not in possession of a phone?

      1. pml

        the officers may ask you to sign a affidavit saying you didn’t have one on you at the time,, then when they find out you lied they will charge you with committing a crime.

        1. SHG Post author

          In serious circumstances, that could be. For the vast majority of accidents where their role was nothing more than filling out an accident report, they would never bother. There will be no investigation and they will never look back.

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