By Thomas Mitchell
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —Fourth Amendment
The urge to dictate how other people behave or misbehave apparently is irresistible. There are already laws on the books prohibiting drivers from using cellphones while driving unless a hands-free system is employed. Now the Nevada Legislature is considering a bill, Assembly Bill 200, that would allow police at the scene of an accident to use an electronic device to determine whether a driver was, in fact, using such a device at the time of an accident. The bill would allow the suspension of one’s driver’s license for refusing to comply.
A company called Cellebrite says it has created something it calls a Textalyzer — like a breathalyzer, get it? — that will detect whether a phone was in use. The company says the device would only determine a user’s activity and what type of activity, such as hands-free or not, and would not reveal phone numbers or text messages.
Distracted driving is, well, distracted driving. The hair splitting over the type of distracted driving is irrelevant. One could be changing the radio, eating a sandwich, combing one’s hair or yelling at the screaming brat in the back seat.
The result is all the same, as well as the responsibility as shown by the evidence at the scene of the accident. AB200, despite all the reassurances to the contrary, is unnecessary and poses too great a threat to the right to be secure in one’s person and personal effects without a properly issued search warrant.
“We can’t give the government the power to peer into everybody’s digital lives indiscriminately, because that might create a bigger problem than the one we’re trying to solve in the first place,” NBC News recently quoted Neil Richards, a law professor at Washington University in St. Louis who’s an expert in privacy and civil liberties, as saying about the use of such devices by police. “The way to do it is if the police suspect a case of distracting driving, they go and they get a warrant and they compel the records from the service provider.”
Who is to say what an officer might extract once the phone is handed over. The Nevada American Civil Liberties Union has expressed opposition to AB200. “The ACLU of Nevada strongly opposes AB200 which would allow law enforcement to utilize experimental technology that would infringe on the Fourth Amendment and privacy rights of Nevadans without obtaining a warrant,” The Nevada Independent has quoted ACLU of Nevada Policy Director Holly Welborn as saying.
With all the guns, non-lethal arms, body cameras and other devices police are forced to lug around, there is no need to add an expensive and as-yet unproven cellphone scanning device.
Thomas Mitchell is a former newspaper editor who now writes conservative/libertarian columns for weekly papers in Nevada. You may email Mitchell at firstname.lastname@example.org. He blogs at http://4thst8.wordpress.com/.