Textalyzer to Help Combat Texting While Driving. But Is It Constitutional?

The dangers associated with texting and driving have prompted some states to take direct action to combat the issue. With the aid of Cellebrite, a technology company, police departments may soon be able to use a handheld device to determine whether a person has been using his or her cell phone while driving a car.

Named after the breathalyzer device used to detect alcohol present in a driver’s blood, the “textalyzer” analyzes cellphone data and allows an officer to see when drivers last used their cell phone.

The “textalyzer” is plugged into a driver’s phone and allows officers to see if the driver was interacting with the phone while driving. The company behind the device, Cellebrite, claims that the “textalyzer” collects minimal data from a driver’s cellphone. For example, the “textalyzer” could tell an officer that a driver had sent a text message at 1:56 p.m., but the device would not tell the officer the content of that message. While this advance in road safety technology may aid officers in catching distracted drivers, the technology could infringe on privacy rights and violate the constitution.

States considering using the “textalyzer” must carefully consider the potential problems the new technology creates. The central concern with police using the “textalyzer” is that the device may overstep personal liberty and give police too much access to private data. Although the company developing the device claims that it only collects data necessary to determine whether a person was using his or her phone while driving, the technology may lead to legal battles over privacy. Courts have not yet addressed the constitutional concerns with police officers conducting a roadside data collection with a device like the “textalyzer.”

In discussing ways to ensure that officers are allowed to use such technology, some states have considered adding an implied consent law to their statute books. Implied consent has traditionally been used by states to make drivers submit to a breath or blood test when a driver is suspected of driving while intoxicated. Refusal to take a breathalyzer test usually results in the state revoking a driver’s license. If states were to pass a law of implied consent for the “textalyzer,” drivers who refuse to turn over their cell phones to police during a traffic stop could risk a license revocation.

Although Wisconsin does not currently have any pending legislation regarding such devices, the national trend of combatting texting and driving with technology is expected to make its way to Wisconsin. The implementation of technology like the “textalyzer” could reduce distracted driving. However, the legal implications of data collection during routine traffic stops could substantially curb the use of this technology. State legislatures will need to strike a careful balance between public safety and Fourth Amendment privacy rights.

AUTHOR: James Lewis

Copyright Gimbel, Reilly, Guerin & Brown, LLP
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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