Submitting to a phone test after an accident could become law for some drivers.

Elizabeth was excited. Her three-year-old son had just gotten accepted into a daycare program. The young mom—in her early 20’s—started texting relatives and taking video of her son. But Elizabeth was also driving, and as she recorded her son’s precious moments, she plowed into three teen girls in a crosswalk.

The girls lived, but with long-lasting injuries. Elizabeth is spending five months in jail and can’t have a phone that takes pictures or video. 

But not every case is so clear.

Now, a “Textalyzer” may help some officers figure out if a driver used his or her phone illegally before a crash.

“I have often heard there is no such thing as a breathalyzer for distracted driving—so we created one,” said Ben Lieberman with the group Distracted Operators Risk Casualties, in a press release about new legislation that would allow the use of “Textalyzer” technology in New York.

Evan

Lieberman’s 19-year-old son, Evan, was riding to work in the back of a car on a sunny summer day in 2011. The driver of that car crashed into another car head-on. Critically injured, Evan went through many surgeries, but did not survive.

“The driver’s cell phone when Evan was injured was never recovered, nor requested by the police at the scene or subsequently,” wrote Lieberman on the Distracted Operators Risk Casualties site.

Lieberman said his own civil lawsuit later turned up records showing the driver had been texting behind the wheel.

“There is no police protocol currently,” he told Archer News. “At every collision you view while you are driving, the issue of distracted driving is rarely addressed.”

Crash myths

Lieberman said people have misconceptions about crash investigations—first, that police will actually investigate a phone, and second, that police will be able to easily obtain phone records and see what the driver was doing. But, he said, getting phone records is not an easy task.

“This is a huge ordeal. It takes subpoenas and a lot of effort,” he said. 

“It doesn’t get done unless there is a fatality or serious injury,” he added. “Keep in mind my son was taken away in a helicopter, and the phone was never examined nor were the phone records.”

The solution, according to Lieberman?

“Establish a police protocol that currently doesn’t exist,” he said. “But adding this [“Textalyzer”] technology helps to make the investigation respectful.”

Evan’s law

Lawmakers in New York have introduced a first-of-its-kind bill—known as “Evan’s law”— that would allow police to do field testing on phones at the scene of crash.

The bill says drivers in the state automatically agree to submit their phones for field testing after a crash if they drive on the roads of New York.

If there is a crash, the bill says, drivers must submit their phones for field testing or face suspension or revocation of their license, plus a $500 fine. In addition, the bill says, a judge can later force them to submit their phone for testing, and their initial refusal can be admitted as evidence in court.

Privacy

The “Textalyzer” technology, however, would not view the phone’s actual communications, according to the text of the bill.

“Furthermore,” the bill reads, “No such electronic scan shall include the content or origin of any communication or game conducted, or image or electronic data viewed, on a mobile telephone or portable electronic device.”

Privacy is important, Lieberman said.

“The Fourth Amendment is a pillar of our country. I would never want to be responsible for being part of infringing on personal issues,” he said. “We are trying to accomplish a respectful but effective investigation.”

Privacy concerns

Some privacy advocates do not support the bill’s approach.

“Our perspective is that this is a very serious public safety concern, but this bill is ill-conceived and not tailored to the problem,” Mariko Hirose with the New York Civil Liberties Union said, according to Motherboard.

Hirose told Motherboard that there are questions about how the technology would work, whether drivers would have to give their passwords to law enforcement, and whether the “Textalyzer” would be able to tell the difference between legal and illegal use of the phone.

“Even if you finely tune the technology, there could be many cases where the cellphone is actively working but in a way that’s consistent with distracted driving laws,” she said in the article. “This allows cops to do this field testing for every fender bender. It’s concerning from a policy perspective to give police that power.”

Mobile forensics

The company behind the “Textalyzer” is Cellebrite, which already has a line of mobile forensics products for law enforcement. 

 “We look forward to supporting DORCs [Distracted Operators Risk Casualties] and law enforcement—both in New York and nationally—to curb distracted driving,” said Cellebrite CEO Jim Grady in a press release.

The company’s current UFED technology allows law enforcement to “extract and analyze real–time mobile data, including call logs, contacts, calendar, SMS, MMS, media files, apps data, chats, passwords,” according to Cellebrite’s website, as well as “manually capture screen shots or phone images with UFED Camera and attach to case report.”

The website describes two situations in which the UFED technology could be used.

“With a warrant in hand, police make a drug bust and seize several mobile phones. Performing a quick extraction and analysis, investigators are able to establish connections between two suspects. Pictures and texts on the phones help investigators identify a larger community drug ring—and additional suspects—immediately producing actionable leads,” reads one of the scenarios.

“Responding to a report of a missing child, and with the permission of her parents, police quickly access the young girl’s mobile phone. On it, they find a series of texts encouraging her to come hang out at a party. This allowed them to identify the suspect, where he lived and safely rescue the girl before any physical harm occurred,” reads the other scenario.

The “Textalyzer” technology would be different, reported Ars Technica.

“It will solely say whether the phone was in use prior to a motor-vehicle mishap,” the article said. “Further analysis, which might require a warrant, could be necessary to determine whether such usage was via hands-free dashboard technology and to confirm the original finding.”

Could you pass the “Textalyzer” test?

Almost 70% of drivers admit to using their cell phones while driving, despite the dangers, the bill says. In addition, crashes are up 14% and deaths on the road are up 8%, according to the bill’s authors.

“Therefore, while legislature finds that while technology has created this grave danger, it has also the capacity to aid law enforcement in tackling and eradicating distracted driving caused by mobile telephones and perusal electronic devices,” the bill’s text reads.

Lieberman said distracted driving may be responsible for the increase in crashes and deaths, but without the right laws and technology, it may be hard to show the connection.

“We hope to aid the public in understanding the issue,” he said. “The public needs to understand the damage. Right now they can not grasp the scope of damage because they are not getting the right numbers.”

“I want to respect privacy,” Lieberman said. “And I don’t want to bury another child.”