By Donna Lieberman

Each year New York State Police issue more than 200,000 tickets to drivers for operating their phones in their cars. Distracted driving is a serious problem that deserves thoughtful action. Yet the solution Albany is considering – so-called Textalyzer technology – raises serious privacy worries and has not even been shown to work.

According to its creators, Textalyzer technology can analyze the cell phone of a driver involved in a crash to determine whether the phone was in-use prior to an accident. Its name pays homage to widely accepted Breathalyzer technology.

A bill in the New York State Senate would authorize law enforcement officers to demand a driver’s phone for Textalyzer analysis after a crash. If the driver refuses, her license would be automatically suspended. If the driver agrees and Textalyzer shows her phone was in use prior to the accident, the results can be used as evidence of distracted driving.

What may sound like a straightforward technological solution is anything but.

Cellebrite, the manufacturer of the device, claims Textalyzer works as-promised, but it has yet to allow outside experts to test it. That means Textalyzer advocates are asking state lawmakers to authorize the use of an unproven technology to impute criminal wrongdoing across our state.

Even if the device accurately indicates that a text was sent prior to a collision, it is still not clear that Textalyzer could determine whether a text was typed by hand or dictated by voice command. Hands-free use of a phone to speak or text is not unlawful.

The problems don’t end there. Thanks to smartphones, most of us carry our personal lives in our pockets. If the bill becomes law, drivers across the state would be faced with the choice of surrendering their license, or giving police officers access to sensitive personal information contained on their phones, all without a warrant.

The software manufacturer claims that sensitive information won’t get into the hands of police because the technology only indicates whether the phone was in use. But, in order to obtain this information, the Textalyzer software would necessarily need access to what are called “log files.” These files generate a wealth of information about a phone’s owner, and often include sensitive metadata, such as the identities of the people you communicate with and the frequency of your communications.

In other words, Textalyzer software would give police easy access to a lot of sensitive information about your personal affairs. The Supreme Court has ruled that law enforcement must get a warrant before accessing personal information.

Like any tool, Textalyzer is also subject to law enforcement bias. Our criminal justice system disproportionately targets communities of color: Department of Justice data shows that black people are more likely to be subjected to traffic stops by police, and that officers are more likely to conduct searches during a traffic stop when the driver is black. Communities of color would likely suffer disproportionately from Textalyzer’s flaws.

There are more effective ways to deter distracted driving. Cell phones and tablets can be programmed with free or low-cost applications that eliminate common sources of distraction by disabling a driver’s ability to use devices when the car is in motion. There are also other apps that train drivers to avoid the use of electronic devices while driving.

When car accidents do occur, there’s already a tried and true, and decidedly low-tech, way to determine whether texting may have played a role: a warrant from a judge to search a driver’s phone.

The only advantage offered by Textalyzer is an end run around the right to privacy.

This piece was originally published on January 31, 2018 as an op-ed in City & State

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