Draw line at easing cellphone searches

Legislation approved 71-10 this fall by the Ohio House of Representatives would allow police to issue tickets to drivers caught using electronic devices, like cellphones, while driving.

The bill targets a very serious growing problem. Distracted drivers using electronic devices contributed to nearly 14,000 automobile crashes in Ohio last year. That should startle anyone venturing onto area roadways.

Still, the House bill makes distracted driving only a secondary offense. That means police must stop the driver for a separate offense before they can give a ticket for distracted driving. The legislation falls short of what’s going on in other nearby states. In neighboring West Virginia, for instance, distracted driving is a primary offense. If a police officer sees a driver texting while driving in that state, he or she can be pulled over immediately and issued a ticket. This newspaper’s editorial board — of which I’m a member — has argued that’s the way it should be.

Unquestionably, distracted driving should be treated as a crime. Drivers who text, surf the internet or play video games on hand-held devices should be held accountable if they cause a crash.

I’m all for strengthening laws, increasing penalties and stopping that practice in order to save lives.

But that doesn’t mean I’m ready to call for a surrender of Americans’ right to privacy. And that’s precisely what I see as the end result if police use of the “textalyzer” would become law.

“What on earth is a textalyzer?” you ask.

It’s a device that would act as, well, a Breathalyzer of sorts — but for measuring not alcohol, but text messages.

New legislation being proposed in New York would allow police to use the textalyzer if they suspect distracted driving. The device would be connected to the driver’s mobile device, and it would scan immediately for phone calls, emails or text messages sent when the driver would have been operating the vehicle.

As it is, most states, including Ohio, cannot simply confiscate your phone and begin scrolling for data without either your consent to search or a signed search warrant. Information stored in your personal cellphone is treated the same as what’s stored in your home computer or in your bedroom dresser drawer. Police can’t just barge in and start digging without presenting probable cause for suspicious activity and convincing a judge to sign a warrant allowing the search.

There’s a process with lots of hoops. Certainly, our forefathers knew that allowing the government to delve into our privacy should not be easy. That’s why they guaranteed our “persons, houses, papers and effects” against unreasonable searches and seizures via the Fourth Amendment to our Constitution.

NPR, or National Public Radio, reports that engineer Lee Papathanasiou, who works for the company Cellebrite designing the device, said police can connect the device to the phone with a cord, tap a button and get a reading in about 90 seconds listing the last activities on the phone with a time stamp. It could include what apps were open and in use, screen taps and swipes. It also could tell if the driver was using a phone legally, hands-free.

The engineer maintains the device could only go so far, but who’s to say what that line is? Do they get to check your phone randomly on a routine traffic stop? Do they start setting up texting checkpoints? Do they get to record and keep the information they’ve obtained from your phone? And if they do, does that become a public record available to anyone who requests it?

Our forefathers had the wherewithal to guard against illegal search and seizure. Certainly, they couldn’t have known that by protecting our “effects” that they were including our cellphones, but I, for one, am glad they did.

Now let’s just hope legislators and ultimately Supreme Court justices who will answer questions on the legal use of these devices feel the same way.

COMMENTS