Nevada is considering legislation that would allow police to test for cellphone use at the scene of a car crash. But the use of such technology to curb distracted driving also raises privacy concerns, and some critics contend it violates constitutional protections against unreasonable search and seizure.
The state is just the latest to take a hard look at so-called textalyzers. New York, New Jersey, Tennessee and the city of Chicago are mulling similar legislation.
The measure’s backers contend that existing distracted driving laws are nearly impossible to enforce. Though it’s illegal to text while driving in 47 states and the District, or use handheld devices behind the wheel in more than a dozen states, federal traffic safety figures show that distracted driving remains a persistent and deadly problem.
Distracted driving contributed to 3,450 auto fatalities in 2016, according to the U.S. Department of Transportation. Fourteen percent of those deaths, or 444 people, were linked to cellphone use.
The Nevada bill would let police officers plug the device into a phone and scan for recent activity, like Facebook messaging or web browsing. The Israel-based company behind the textalyzer, Cellebrite, said it drew on the alcohol-detecting breathalyzer for the name.
Privacy advocates, including the American Civil Liberties Union, contend that law enforcement should not be allowed to use the tool without a warrant. Though the textalyzer has been cast as a “breathalyzer for texting,” the ACLU say it’s invasive and would violate Fourth Amendment protections against unreasonable search and seizure.
The ACLU has also raised questions about the types of data the device would collect and how it would determine whether a person was using their phone with their hands or relying on a hands-free option.
A similar bill failed to advance in New York in 2017. But lawmakers in Albany have introduced legislation that would set up a pilot program to test the technology in Westchester and Kings counties.
Cellebrite claims the textalyzer would not collect any personal data and would only identify the type of activity on a phone with an associated time stamp. The digital forensics company said the device would be able to tell whether an app was being used in hands-free mode.
But critics say the technology remains untested in real-world settings. And they have raised doubts about how the textalyzer would make determinations about the use of apps in speech-to-text mode or how police would tie a particular phone to a driver without further searches.
Cellebrite did not immediately respond to a request for comment.
At a demonstration for New York legislators in 2017, Cellebrite unveiled a prototype using Panasonic hardware. An engineer told the audience that the device is “designed to protect privacy” and is “separate from some of our other technology that we offer for law enforcement.” According to multiple reports, Cellebrite has routinely provided law enforcement with technology to break open locked iPhones in criminal investigations.
Such methods gained widespread attention when the FBI solicited the help of a third party to crack the iPhone tied to a mass shooting in San Bernardino, Calif., in 2015. A federal judge ordered Apple to develop a way to get into the device but the company refused, pitting the iPhone maker in a standoff with the Justice Department over encryption and consumer privacy.