The New York legislature has seen the introduction of a bill, with bipartisan sponsorship that, if adopted, would make New York the first state to give police immediate access to drivers’ cellphones at accident sites. The sponsors of the bills (S. 6325, A. 8613) intend the measure as a way to attack distracted driving, by showing whether the driver was talking or texting on the phone right before or at the time of the accident.
They are calling the proposal “Evan’s law,” to honor 19-year-old Evan Lieberman, who had just completed his freshman year of college when he was fatally injured in a June 2011 collision in Orange County; the car in which he was a back-seat passenger was in an early morning collision with a vehicle driven by another 19-year-old.
Evan’s father learned police do not routinely check cell phone use by drivers involved in collisions, so he filed a civil lawsuit to get that information. The cell phone of the other driver showed he had been using it shortly before the accident. Evan’s father became one of the founders of an activist group working to prevent distracted-driving accidents.
If enacted, the bill in the legislature would mean police would not have to subpoena cell phone records if they suspect distracted driving played a part in an accident, but could instead, as a routine part of an accident investigation, check whether a cell phone or other portable electronic device had been in use shortly before or at the time of an accident that involved death, serious injury or property damage.
Sponsors liken their measure to laws authorizing roadside use of a Breathalyzer to detect alcohol-impaired drivers; as with refusal to submit to a breath test for alcohol, drivers who refused to allow their cell phones to be examined in a roadside test would face fines and loss of their driver’s licenses.
To protect privacy, the bill would limit access to information on whether the phone had been in recent use; the roadside test would be required to use technology preventing warrantless police access to other information on the cell phone, such as contacts, phone numbers, conversation texts, applications data or photos.
There as yet is no known “textalyzer” capable of scanning a cell phone to see if it been used recently while simultaneously shielding other information, but one is thought to be near development by Cellebrite, an Israeli firm specializing in mobile communications diagnostics and forensics. (The firm is widely thought to be the private contractor the FBI hired to unlock the San Bernardino mass shooter’s iPhone, after Apple refused to build in a back-door access method.)
New York has banned driver use of hand-held cell phones since 2001. A Federal Highway Administration study done in 2009 found drivers who texted behind the wheel were 23 times more likely to crash; it also said talking on a hand-held cell phone while driving made an accident four times more likely. A survey done five years ago for the Centers for Disease Control and Prevention found nearly half of students 16 and older admitted to having texted or emailed while driving within the past 30 days. Other studies have found texting while driving has an effect on driver safety equivalent to having a blood alcohol level of .08%, the threshold for intoxication in most states.