Distracted driving—particularly texting while driving—is a growing problem that results in numerous automobile accidents—and fatalities—each year. This type of driving is as dangerous as drunk driving.
To address this increasing problem, international tech company Cellebrite has developed a Textalyzer—a computer program that enables law enforcement to unlock cell phone digital evidence to determine whether a driver distracted by his/her cell phone was responsible for a traffic accident.
Cellebrite is touting its technology as beneficial in a variety of traffic law enforcement scenarios. A simple cable between a driver’s cell phone to the officer’s laptop can yield data as to whether the cell phone was used at the time of the accident.
Fourth Amendment Concerns
Privacy rights advocates stress that the Textalyzer raises two important Fourth Amendment search and seizure issues:
- The officer is, essentially, seizing the driver’s property when examining his/her cell phone; and
- The officer is conducting a constitutional search without a warrant.
Whereas warrants are generally necessary when searching and/or seizing a citizen’s property, one recognized exception is consent. Thus, if a person gives the officer permission to examine his/her cell phone and voluntarily and knowingly consents to Textalyzer examination, then no constitutional issue arises.
However, the US Supreme Court has repeatedly held that because cell phones oftentimes contain sensitive and personal information, a warrant is, in fact, necessary for law enforcement to examine them. In Riley v. California, for example, the Court unanimously held that the warrant exception to the Fourth Amendment is to protect officer and bystander safety, and digital data contained in a cell phone cannot be used in such a capacity. Therefore, it is not a burden to require police to obtain a warrant to examine the contents of one’s cell phone.
However, in cases where the individual does not provide consent, then the current debate is whether the implied consent law for DUI/DWI may kick in. Pursuant to Minnesota’s DUI/DWI law (Minn. Stat. 169.A51), if a person is suspected of driving under the influence of alcohol and/or drugs, then s/he must submit to a breathalyzer test to determine blood alcohol concentration (BAC). Refusal to do this results in additional charges and potentially longer sentences if convicted.
The US Supreme Court has repeatedly held that law enforcement officers do not need a warrant for a breath test because of the compelling governmental interest in reducing drunk driving and the minimal inconvenience and privacy intrusion for the motorist. Conversely, blood or urine tests require a warrant because of the physical invasion and privacy infringement necessary to conduct said tests.
Thus, it is feasible that if challenged in court, implied consent laws with respect to Textalyzer examination would be upheld as the government has a legitimate interest in curbing distracted driving-related accidents and the privacy intrusion to the motorist is slight. Not unlike DUI/DWI-related implied consent refusal, failure to abide by an implied consent law for Textalyzer analysis could result in a driver’s license suspension and other administrative and criminal sanctions.
Balancing Individual Liberties and Public Safety
If an implied consent law is established for the Textalyzer, then certain safeguards would have to be present; among them the limited capacity of the Textalyzer to access certain cell phone data. Thus, instead of having the ability to search all digital data, the Textalyzer should be limited in only obtaining information about how and when the phone was last used to determine whether a suspected at-fault driver was, indeed, distracted by his/her cell phone.
Additionally, an implied consent law should also limit police officers’ ability to examine an individual’s phone only if they have probable cause to believe the driver committed a traffic offense AND that the driver was using a cell phone at the time.