Supporters of an Iowa law adopted earlier this year to curb distracted driving say privacy concerns likely will prevent law enforcement from using technology to determine if drivers were texting while operating their vehicles.
Although the Iowa Legislature approved a ban on texting while driving, law enforcement officers who stop motorists who appear to be texting say drivers claim they were dialing a phone number or using their navigation apps — uses that are legal.
A textalyzer — described as a breathalyzer for cellphones — could be used at a crash scene to determine if a phone was used around the time of the crash.
“Looks like an interesting tool,” Linn County Sheriff’s Office Major John Godar said of the textalyzer that was developed by Cellebrite, an Israeli company. “But I see a lot of privacy concerns with it.”
He also pointed out that Iowa’s texting while driving ban would have to be amended to permit the use of textalyzers.
As approved this spring, the law states that “nothing in this section shall be construed to authorize a peace officer to confiscate a portable hand-held electronic communication device from the driver or occupant of a motor vehicle.”
Amber Markham, a Department of Public Safety policy adviser, doubts lawmakers would embrace the use of textalyzers given the “strong sentiment in the Legislature that we need to be certain to protect the privacy rights of our citizens.”
“This may appear to be an infringement on those rights,” she said.
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The department, she added, has no plans to propose legislation enabling the use of textalyzers, and any movement in that direction would be certain to face opposition from privacy advocates.
Use of a textalyzer “violates the constitutional right against self-incrimination, as well as violating the due process clause,” according to Marty Ryan of Fawkes-Lee & Ryan, lobbyists for Justice Reform Consortium at the Iowa Capitol. “I am not going to hand over my phone to any law enforcement officer for any reason unless that officer has a warrant obtained with probable cause that I have committed a crime.”
That concern isn’t limited to civil libertarians.
In 2014, the U.S. Supreme Court ruled police could not search a cellphone without a warrant, even after an arrest.
Cellebrite officials did not respond to questions about its textalyzer. But according to its website, the device only would tell law enforcement if the phone had been in use around the time of a crash.
That’s also the argument Gov. Andrew Cuomo is making in asking the New York Legislature to approve its use. All contacts, conversations, photos and other phone information would remain private. A warrant would still be required to retrieve that information if it is determined that the cellphone was used.
Under his proposal, drivers would lose their license for a year if they refused to submit their phone to the test.
Mark Lowe, the director of the Iowa Department of Transportation, also sees the textalyzer as a potentially useful tool to curb texting while driving. But he said he needs more information about the privacy concerns and constitutional issues “before we could advocate investment in or use of this technology.”
Patrick Hoye of the Governor’s Traffic Safety Bureau recognizes the privacy concerns but sees the textalyzer as an asset in enforcing the texting while driving ban.
“There’s no question about the guilt,” he said. “From that point, it would be great.”
Ryan, the lobbyist, insists there’s no need for “roadside prosecution.”
“Legalizing the use of a device such as a textalyzer opens a series of doors for expansion into more intrusive uses,” he said. “Once adopted by the Legislature, law enforcement lobbies will continue to push for more reasons why the need for additional information is necessary. It isn’t. Search warrants still serve a viable purpose.”
Sen. Todd Bowman, D-Maquoketa, ranking member of the Senate Transportation Committee, said legalizing the use of the textalyzer “hinges on its ability to protect private information and only seeing if the phone was active leading up to a crash.”
Even then, Rep. Gary Worthan, R-Storm Lake, who was a backer of Iowa’s texting while driving ban, said the use of the textalyzer may be too little, too late.
“Yes, the person can be charged, but that occurs after someone has been killed or injured,” Worthan said.
Rather than push for use of the textalyzer, Markham expects the Iowa Department of Public Safety will push to require drivers to use hands-free phones. That would make it easier for law enforcement to determine if a driver was texting or using their GPS app, she said.
Originally, the department pushed for a full hands-free law this year, “but there was not the political will to do that, so we pushed for the incremental step of a texting ban,” Markham said. She expects that after motorists have had a chance to adjust to the texting while driving ban, DPS will ask lawmakers to require drivers to use hands-free devices.
Hoye, of the Governor’s Traffic Safety Bureau, agreed with that approach.
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“Typically, lawmakers give it some time before they revise a new law,” he said. “And I think people are coming to the realization that distracted driving is a primary cause of crashes.”
BY THE NUMBERS
660,000: The number of drivers — at any given daylight moment across America — who are texting or manipulating electronic devices while driving.
66 percent: In Iowa, more than two-thirds of fatalities over the past five years have involved “lane departure crashes,” generally considered an indication of distracted driving.
67 percent: Increase in the number of crashes involving distracted driving in Iowa, from 659 in 2010 to 1,100 in 2015.
27: Average number of people killed every day in the United States by drunken drivers.
8: Average number of people killed every day in the United States by distracted drivers. The number could be higher because reports do not always determine if a phone was being used at the time of a crash.
61 percent: Drivers who say they text while driving, according to a poll of more than 2,000 drivers by AT&T; 33 percent reported checking email, 28 percent surfing the internet, 27 percent using Facebook, 17 percent taking a selfie and 10 percent video chatting.
Sources: U.S. Department of Transportation; Iowa Department of Transportation; Stay Alive: Don’t Phone and Drive Coalition; U.S. Centers for Disease Control and Prevention; AT&T
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