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Textalyzers: New Technology May Raise Privacy Concerns

It’s no secret these days that smartphones play a major role in our lives. Look around you at any restaurant, grocery store, or simply walking down the street and you’ll likely see dozens of people, heads down, intent on their screens. Increasingly, states are passing laws to make sure that this same scene isn’t repeated behind the wheel.

Pennsylvania is one of 46 states, as well as the District of Columbia, that ban texting while driving1.If caught, a driver may be convicted of a summary offense and a $50.00 fine. Currently, Pennsylvania’s law does not allow for the seizure of a cell phone in connection with the offense2.

Introduction of “Textalyzers”

New York, which imposes much tougher sanctions on cell-phone users, recently took up the question of how to enforce the cell-phone ban with the introduction of Senate Bill 6325A, otherwise known as “Evan’s Law.” The bill would allow law enforcement to use electronic scanning devices after an accident to determine whether a driver was using his or her cell phone. These so-called “Textalyzers” would be treated in much the same that Breathalyzers are currently treated. If the bill is passed in its current form, licensed drivers will be deemed to have given “implied consent” to the use of the Textalyzer upon obtaining the privilege of a driver’s license3.

Evan’s Law faces challenges from groups that are concerned with its privacy implications. Although the bill’s supporters state that a phone’s content will not be subject to the Textalyzer, the American Civil Liberties Union fears that the legislation will lead to warrantless searches of cell phones in the event of an accident.4 Currently, police must obtain a warrant prior to searching a cell phone, as the United States Supreme Court has recognized that cell phones represent “digital record of nearly every aspect of [a person’s life].”5 The bill’s sponsors hope that a vote could come sometime this year, perhaps as early as the current legislative session6. Similar efforts in Maryland and New Jersey have been unsuccessful7.

1Cell Phones and Texting, Insurance Institute of Highway Safety, May 2016.

275 Pa.C.S. §3316.

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3Matt Richtel, Texting and Driving? Watch Out for the Textalyzer, New York Times, April 27, 2016.

4Joel Rose, New York Wants to Know: Have You Been Texting and Driving?, NP Morning Edition, April 27, 2016, available at http://www.npr.org/sections/alltechconsidered/2016/04/27 /474980140/new-york-wants-to-know-have-you-been-texting-and-driving.

5Riley v. California, 134 S. Ct. 2473, 2479 (U.S. 2014).

6Texting and Driving?, supra.

7New York Wants to Know, supra.

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