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Textalyzer project may result in new law

A proposed pilot project in Westchester County could result in statewide legislation to allow police departments to use electronic scanning devices to determine if a driver involved in a car crash was on a cell phone or other electronic device at the time of the crash.

State Sen. Shelley Mayer, D-Yonkers, has proposed the legislation allowing Westchester County, where she lives, to field test cell phones and portable electronic devices, though no individual police department is required to participate in the program. Once the two-year period is over, a report will be made available regarding the impact of the program reducing traffic accidents, the number of phones tested, the costs, efficiency and accuracy.

“Despite New York banning the use of handheld devices while driving there is no effective protocol to determine whether the behavior caused a crash. Currently, law enforcement relies on an eyewitness or an unlikely confession,” Mayer wrote in the legislative justification for the bill. “Phone records provide an insufficient portion of information that excludes for example; emails, social media, selfies, games, iMessages and apps. All of those popular functions are bundled under data and are therefore inseparable. Phone records are also difficult to obtain.”

Mayer’s legislation was approved by the Senate’s Transportation Committee, 10-1. There have been no votes in the Assembly, where the legislation has been referred to the Transportation Committee.

The so-called Textalyzer made quite a bit of news a couple of years ago. Former state Sen. Terrance Murphy, R-Yorktown, sponsored legislation in 2016 that would have allowed law enforcement to use the device. In 2017, Gov. Andrew Cuomo directed the Governor’s Traffic Safety Committee to study the technology.

That report stated more than half (52 percent) of the drivers surveyed at state Department of Motor Vehicles offices in 2017 said that they send or receive text messages while driving and 9 percent admitted that they text all or most of the time.

In addition, 25 percent of the drivers surveyed said they use a handheld device in violation of the law all or most of the time when they talk on a cellphone while driving. Between 2012 and 2016, the number of tickets issued for texting increased more than three-fold, from 30,241 to 92,363. From 2012-2016, 14 people were killed in New York state and 2,959 were injured in crashes involving a cell phone.

The state report also discussed several of the problems with the Textalyzer through the fall of 2017, including a lack of vendor competition; no firm unit cost since Cellebrite, the company that would make the Textalyzer, won’t develop a final product until legislation is passed allowing their use; no evidence that the product will actually be able to determine if a person was using a cellphone at the time of a crash; and whether or not new technology would be developed to render the Textalyzer obsolete.

Advocates also raised several privacy-related concerns with the Textalyzer. Some said the device would be duplicative since police officers can already obtain evidence regarding cell phone use by subpoenaing records from cell phone service providers, though those records do not capture information related to the detection and reporting of any online activity, including emailing, social media activities and the use of apps.

Opponents also argue the Textalyzer could invite unnecessary bias and selective enforcement practices or that the police will use it as an excuse to look around the vehicle for other violations, contraband or other signs of criminal activity. Another issue raised was that the device could not determine if the driver or passenger was using the cell phone.

There are also concerns the device violates a driver’s Fourth Amendment right to privacy and protections against improper search and seizure. Since the technology has not been fully developed or tested, there is no way to ensure that the technology is not scanning or collecting data that is on a cell phone or other electronic device — going beyond the access to the activity logs. Any proposed utilization of Textalyzer technology should ensure that all personal privacies (e.g., list of contacts) are protected.

Those concerns are one reason for the pilot program. In addition to concerns that can’t be dealt with until the Textalyzer is field tested, Mayer said it is likely that distracted driving crashes are being underreported.

“National High Traffic Safety Administration reported that “texting and driving” is five times more dangerous than drunk driving. AAA has reported that 67 percent of drivers admit to the behavior,” Mayer wrote. “NHTSA further estimates that 481,000 U.S. drivers are using Hand held device at any moment during the day. The above combination is a toxic mix and common sense dictates the numbers of crashes reported should be extremely high. Yet in one recent year, New York DMV reported that out of 258,000 crashes — texting was only cited in a mere 64 motorists. As a result of this lack of protocol, distracted driving statistics are drastically underreported; catastrophically preventing government from measuring the problem and implementing needed deterrents.”

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