Is The 'Textalyzer' Resolution A Necessary Safety Step Or A Privacy Intrusion?

By Rachel Cromidas in News on Apr 21, 2017 7:00PM

Woman takes a break from scootering to text in River North. Photo by Chicagoist Flickr pool user Bob Vonderau.

It could be an important tool to combat distracted driving, or a disturbing invasion of privacy, depending on how you look at it: Two aldermen introduced a proposal to the City Council this week that would introduce the so-called "textalyzer" to Chicago's police department. It's a device that would allow police to check a driver's cell phone after a car crash to determine whether that driver was texting, or otherwise typing on their phone, moments before the crash.

The resolution was put forth Wednesday by Ald. Ed Burke (14th) and Ald. Anthony Beale (9th), both of whom said they want Chicago police to adopt the device because of the pervasive problem of distracted driving, in Chicago and beyond. Roughly one in four traffic collisions in the U.S. are caused by texting while driving, according to national stats, and it causes more traffic deaths among young drivers than drinking and driving does.

“Our nation is in the grips of a texting epidemic. Drivers text with impunity because they think there is little chance of ever getting caught,” Burke said in a press release. “When a motorist is pulled over for suspicion of drinking and driving, police routinely use a Breathalzyer during traffic stops. Why not also be able to use a Textalyzer or a similar device to determine if a driver was engaging in distracted driving?”

Texting and driving has been banned in Chicago since 2008, and the city is the early stages of a "Vision Zero" campaign that would aim to eliminate traffic fatalities in Chicago.

The textalyzer is still in its early stages of development and has not been used in other cities; it is being manufactured by Israeli company Cellebrite, under the guidance of Ben Lieberman, an activist whose 19-year-old son died in a crash with a distracted driver in 2011 in New York, according to the Sun-Times. Typically in cases where a crash victim or victim's family suspects distracted driving caused a collision, prosecutors must go through a lengthy process of suing the driver in question and subpoenaing that person's phone records to prove distracted driving was to blame. After going through this with his son's case, Lieberman sought a technology that could act like a Breathalyzer—a devise that police could use at the scene of a crash to test whether the driver was driving under the influence, or when it comes to distracted driving, was evidently typing on his or her phone at the time of the crash.

The textalyzer could make it much easier to prove whether texting while driving caused an accident. Brendan Kevenides, an attorney who aids cyclists who are the victims of crashes at Freeman Kevenides Law Firm, told Chicagoist that he commonly discovers a driver was texting leading up to a crash—but he always has to subpoena phone records to prove it.

"In every case, we subpoena cell phone records and we often find text messaging, or just use of the cell phone, in very close proximity to when the crash occurred," he said. "The problem with that is, one, you have to file a lawsuit before you can get that, which takes time and money. Plus, when you send a subpoena to their cell phone provider, it takes months to get the information. If the police can make that determination at the scene and hopefully make it a part of their police report when doing an initial assessment, it would be tremendously helpful to already have that information. It could be quite a powerful device."

He also said he would hope the specter of a textalyzer would discourage distracted driving in the first place.

"I commute by bike, and if you take a moment and look at the drivers, everyone seems to be on their cell phones, and that really needs to be discouraged," he said.

One major concern already being raised about the device is whether it would constitute an invasion of privacy. Though the device wouldn't provide police with detailed phone records or complete access to a driver's phone, it would give them some information; and it could be a slippery slope that gives police officers too much leeway to seize, hold, and examine a phone without a search warrant.

American Civil Liberties Union of Illinois Communication Director Ed Yohnka says civil liberties advocates acknowledge the problem of distracted driving, but don't want to see the solution become a tradeoff with citizens' fundamental right to privacy.

"If this device is intended to capture information from my phone, what information is collected and how do I know that the information is limited?" he said. "What is the mechanism to know that we are not going from collecting information about whether someone is using the device to what they were using it for or what they were saying?"

When it comes to the textalyzer, he told Chicagoist, "What concerned me is a technology or device that no one had ever heard of before is suddenly being advanced and promoted by members of City Council as a panacea with no study [to support it]." Any discussion about whether it should be used in Chicago should include "rules of the road," he said, including addressing: how many officers would carry the device; how long an officer who doesn't carry the device would be allowed to detain someone while waiting for someone else to bring the device; whether police would be allowed to confiscate the phone; and who exactly is privy to the information collected on the device.

Kevenides sees the textalyzer as a valid compromise between the right to privacy and protecting crash victims, provided the technology is solid and narrowly used.

"If the technology is limited in some way, and doesn't search the whole phone, it seems to me like a reasonable compromise between privacy and the desire to know if texting played a role [in a crash]," he said.

Aldermen Beale and Burke did not immediately respond to requests for comment. Beale told the Sun-Times that, “Everywhere you look on Chicago streets and on expressways, drivers are texting. Such illegal activity not only poses a serious threat to other motorists, but also to the many cyclists who regularly use our network of bike lanes and to pedestrians at crosswalks.”