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by Cedric Hughes, Barrister & Solicitor with regular weekly contributions from Leslie McGuffin, LL.B.   

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First the Breathalyzer Now the Textalyzer

Article Number: 
727

Safety experts suspect that drivers ignoring the relatively new laws concerning cell phone usage have caused the recent dramatic reversal in what was a steady downward trend in US road fatalities.  Confirmation, however, is proving difficult.  In any fatal crash, the investigation of phone usage and data, and qualification of it for evidentiary purposes often involves obtaining the driver’s consent and a warrant.

In attempting to tackle this new road safety challenge, perhaps no one has been more energetic than Ben Lieberman of New York City.  As reported by Anna Gronewold of the Associated Press in an article published May 14, 2017, in 2011, Mr. Lieberman’s 19-year-old son Evan was killed in a head-on crash on a highway north of New York City.

Distracted driving by the driver of the car in which the son was a passenger was suspected, but to confirm this Mr. Lieberman had to bring a six-month-long lawsuit.  Mr. Lieberman’s takeaway from this torturous step: —getting this information shouldn’t be so difficult.  So his next step was to partner with the Israel-based technology company, Cellebrite to develop a plug-in device that could determine at a crash scene whether or not a cell phone had been tapped, swiped or clicked around the time of the crash—like a breathalyzer—hence a ‘textalyzer’.

Final rollout of the textalyzer device is expected in about nine months.  The AP news story quotes Cellebrite spokespersons saying, “the device [will] only be able to tell if someone physically clicked or swiped the phone during the time of the accident, and then investigators could use that to determine if they should get a warrant for more detailed information.”  Jim Grady, Cellebrite USA’s CEO said, "For this device, the whole purpose is not to get any data … so no, police won't be able to, unless they rewrite our code."

The third step: the effort currently underway in New York to pass state legislation that will empower the police to ‘textalyze’ cellphones in crashed vehicles.  The AP report says the bill, which has been approved in one Senate committee and is pending in another, does not criminalize refusing a phone check, but penalizes via license suspension.  Jay Shapiro, a New York attorney and former deputy district attorney explained, “The idea is that a person implies consent to drive without distractions when they receive a license.”

The AP report notes, “Sponsors say they expect the Republican-led Senate to approve the bill, but anticipate opposition from the Democratic-led Assembly.”  AP also reports that “Tennessee, New Jersey and the city of Chicago” are considering passing similar legislation.

Deborah Hersman, the CEO of the National Safety Council supports the legislation. Constitutional and privacy advocates are concerned that ‘textalyzers’ will be used to access personal information.  Mr. Lieberman said he hopes the ‘textalyzer’ will serve as a deterrent and a way for law enforcement to begin tracking the scope of the problem.  "The last thing I want … is … legislation that is going to infringe on someone's privacy … but I also don't want to bury another child."

Cedric Hughes

huges & company law corporation vancouver

 

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