New Device Used by Law Enforcement Raises Constitutional Concerns

Sometimes, you can see a potential legal dispute brewing on the horizon. We have written extensively about courts having to deal with constitutional issues when it comes to cell phones, GPS devices, and even black boxes inside vehicles.

Now, New York, and likely other states, are attempting to introduce new legislation that would potentially broaden law enforcement’s ability to determine if a driver was texting at the time of an accident. The technology is too new to have spawned any lawsuits yet, but it is a matter of time before the constitutional issues that surround it get raised in court.

How the Device Works

The technology is a device known as a “textalyzer,” a word play on the breathalyzer device that law enforcement uses to test drivers to see if their blood alcohol level is above the legal limit. Supposedly, the textalyzer can scan a cellphone to see if a text was sent or received at a given time. Law enforcement is expected to use it to see if people involved in traffic accidents or crimes were texting at the time of the accident.

We have written about the numerous court decisions that require officers to obtain a warrant before reading data and information in someone’s phone. The key difference here is that the textalyzer does not actually read the texts, nor does it tell law enforcement who the text was from or what was said. According to the developer, the device could not get information about the content of a text even if the user wanted it to.

It only reveals whether certain gestures, like swipes or taps, were entered on the device. That would of course imply that a text was being sent or received.

Privacy Concerns Raised

Supporters of the law that would allow law enforcement to use this technology say that once police have information about whether a device was used a certain way, they could then obtain a warrant to get the actual information in the user’s cellphone. They argue that the fact that a user may have made a swiping motion on their phone reveals no private data or any information for which there is any privacy expectations.

But privacy experts have concern that the device could be modified to reveal private information, and that law enforcement could take advantage of the technology by attempting to get information on people’s phones even for minor fender benders. They also question how accurate the devices are.

Just like in many states, a driver’s refusal to submit to a breathalyzer can lead to criminal charges or suspension of a license, so too will a driver’s refusal to submit to a textalyzer result in the driver’s license being suspended. Thus, advocates say, there is no actual criminal penalty for users who refuse to submit their phone to the test.

New legal issues are raised every day. Make sure your constitutional rights are protected if the police obtain information about you. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your case if you are charged with a crime or arrested in Maryland.