Every time the government cracks open the door into our private lives, they eventually fling open the windows.
That’s why state lawmakers should resist the urge to pass well-meaning but off-base legislation that would allow police officers to check your phones following a motor vehicle accident.
Legitimately concerned about the rising number of crashes related to inattentive driving due to people texting or calling on their mobile devices, state legislators want police to be able to determine at the scene whether your cell phone was in use at the time of the crash. They say it’s akin to giving suspected drunk drivers a breath test.
Under the legislation (A5890/S3157), police would be required to note on accident reports whether the phone was in use at the time of the crash and whether they believed its use was a factor in the crash.
But to do that, they’d have to determine whether your phone was on or not and whether there was some communication going on at the exact time of the crash.
And to do that, they’d have to somehow invade your phone, probably with some kind of electronic device.
The legislation, while well-intended, is rife with legal and logistical problems.
First off, there are the privacy concerns.
The U.S. Supreme Court in its 2014 decision in Riley v. California, concluded that two key justifications for a warrantless search — a potential threat to the officers (such as from a hidden weapon) and the potential for the evidence to be destroyed — are not met by the search of the digital contents of cell phone. (And that case involved drug dealers and gang members.) So, the court concluded, police need to obtain a search warrant before they can search the contents of cell phones. They could take the phone to preserve it as evidence, they just shouldn’t be allowed to access it until a judge deems it OK.
That standard should be maintained, even in the case of a serious car crash.
Next, how exactly are police going to determine whether your phone was on and in use without somehow invading the contents. First, they’d have to turn it on. Then they’d have to examine the calling or texting functions to know whether messages were being sent. Sponsors say they could do that without accessing the content, but how?
Another logistical argument: The phone being on, and even a message being sent, is no proof that it was being used illegally. Most cell phones today have hands-free devices that allow the driver to dial, speak and even text via voice command, without ever taking their eyes off the road. In addition, many new cars are equipped with hands-free technology that allows drivers to dial and speak through the car, again without touching the phone or taking their eyes off the road.
How would police differentiate between hand-held use and hands-free use to determine the cause of a crash simply by learning whether the phone was on and being used? This could lead to false charges being filed. What if the phone was on, but being used by someone else in the car? What if the distraction was caused by something beyond the driver’s control, such as another driver’s actions or something inside the car like a crying child or a bee flying in the driver’s face?
Sure, police could stop their initial search at accessing the status of the phone. But what if they don’t? What’s to stop police, once they’ve tapped into the phone, from using their access to investigate other crimes unrelated to the crash? There’s no telling how far they could take this once they’ve been given free and easy access to your private cell phone.
If police suspect that a crash was caused by illegal texting or dialing, they have the means to do so. They can interview the driver, who could admit it. They could interview passengers or other drivers who might have witnessed it.
And if that doesn’t do it, they can go the legal route and secure probable cause to obtain a search warrant from a judge to determine if and how the phone was being used at the time of the crash.
Given the rise in the number of car crashes attributed to distracted driving, it’s certainly understandable that we’d want to do all we can to discourage the practice and punish those who violate the laws against it.
But allowing police on the scene to search for even basic information from our phones without a search warrant is a step in the wrong direction to more unwarranted and unconstitutional invasions of our privacy.