125 Broad Street, 19th floor New York, NY 10004 212.607.3300 212.607.3318 www.nyclu.org New York Civil Liberties Union Comments on the “Textalyzer” for the Governor’s Traffic Safety Committee The New York Civil Liberties Union respectfully submits the following comments on the Textalyzer technology.1 The NYCLU, the New York state affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with eight offices across the state, and over 160,000 members and supporters statewide. The NYCLU’s mission is to defend and promote the fundamental principles, rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York, including the right to be free of unwarranted government searches. Distracted driving is a behavior that puts the safety of drivers, passengers and pedestrians at risk. The “textalyzer” device seeks to address one form of distracted driving by allowing law enforcement to scan a driver’s cellphone after an accident to see if it was in use during or before the collision. Proponents for the device describe it as a “breathalyzer for texting,” and seek to have the information obtained exempt from warrant requirements, like a breathalyzer. While the intent behind its creation is well intentioned, this device or similar technologies raise serious privacy, civil rights, and practical enforcement concerns. Additionally, the information the device seeks to obtain is already available by constitutionally compliant means. It is the position of the NYCLU that use of the textalyzer technology to address distrtacted driving would all but inevitably lead to the violation of constitutional rights of privacy and due process. Accuracy and Privacy Concerns It is not actually possible to build a privacy-preserving device that fits the requirements of the proposed textalyzer technology. Modern cellphones are sophisticated computers running numerous software processes at the same time (e.g. applications or system processes). There are millions of software applications available for smartphones, some of which may send and receive data autonomously or semi-autonomously, such as in response to voice commands. Such applications communicate with each other and the mobile operating system they are running on via Application Programming Interfaces, or APIs. APIs are defined set of instructions that limit the scope of a particular action to allowed behavior. 1 This technology was created because of propose legislation in the New York State Legislature. S.B. 2306, 240th Leg., Reg. Sess. (N.Y. 2017). In order to obtain information about the use of a mobile phone, the textalyzer software would have to access log files generated by the phone’s operating system or by individual applications, or interact with the operating system and applications via the APIs they provide. Log files can generate a wealth of information. Each individual application programmer decides what logs the application will generate, including what data they include and how they are formatted. For instance, log files can include sensitive metadata, such as the identity of the person communicated with and the frequency of communications. Therefore, the information accessed by law enforcement would not necessarily be limited to observing whether the phone use was the cause of an accident. Whereas a breathalyzer only records the alcohol level present in a driver at the time of testing, a textalyzer would allow law enforcement officials to access highly sensitive information about the phone owner’s communication patterns, social life, and personal affairs. Additionally, it is not possible for the textalyzer technology to provide accurate information about the use of mobile phones and other types of portable technology. The APIs and log files the textalyzer would scan to determine whether a phone (using the most popular mobile operating systems, iOS or Android) was in use at the time of a collision will not indicate whether text messages were manually typed out on a keyboard, created by voice command, or generated by a bot or some other autonomous or semi-autonomous function. This problem is further complicated by the fact that interactions between different applications and operating systems vary, so what information is available for the textalyzer to determine types of use will vary drastically. Hence, information available to the textalyzer technology about application behavior might vary between two applications that do the same thing depending on exactly how they were programmed. These challenges are inherent to the technology and advances in the technology will not address them. As the artificial intelligence that operates phones improves, the lines between manual, voice command, semi-autonomous, and fully automated responses to applications and system processes will blur, making it almost impossible for any technology to make accurate determinations about type of use. This will not only complicate the task for the textalyzer or a similar technology to assess who is violating the law, but also for society to determine what types of phone interactions should even be considered a violation. Fourth Amendments Requires Law Enforcement to Obtain a Warrant to Use the Textalyzer The textalyzer directly implicates a fundamental privacy interest for drivers in New York State because it is capable of capturing or scanning sensitive information stored in mobile phones and other portable electronic devices. Drivers have a privacy interest in the content stored in these devices; this interest implicates the right to remain free from warrantless searches by law enforcement. The Supreme Court has recognized this privacy interest in two recent cases. In Riley v. California, the Supreme Court held that the Fourth Amendment requires law enforcement to obtain a warrant to search the content of a cellphone.2 In determining whether a search of a cellphone was exempted from the Fourth Amendment warrant requirements, the Court assessed “the degree to which it [the search] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”3 The Court ultimately recognized that cellphones contain a broad array of private information so “[t]he fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”4 The majority in Riley also noted that cloud computing and technological advances improving the processes of obtaining a warrant have minimized the legitimacy of the governmental interests. In a more recent and analogous decision, Birchfield v. North Dakota, the Court examined the reasonableness of a search in light of the availability of a less invasive alternative. The Court held that the Fourth Amendment does not permit warrantless blood tests incident to arrest for drunk driving because of the intrusive nature of a blood test.5 Considering that in Riley the Court recognized a privacy interest in the cellphone, and that law enforcement is capable of obtaining similar evidence of distracted driving through less invasive means,6 it is fair to assume that the texalyzer would violate the Fourth Amendment rights of drivers in New York State. Therefore, based on the Court’s holdings in Riley and Birchfield, the Fourth Amendment requires that law enforcement obtain a warrant prior to using a textalyzer on a driver’s cellphone or other portable device at the site of a collision or accident. Disparate Impact of Textalyzer Technology in Law Enforcement It can be expected that the use of the textalyzer or similar technology will contribute to selective law-enforcement practices. Department of Justice data shows that Black drivers have a disproportionate number of interactions7 with law enforcement at traffic stops.8 Moreover, when police officers have discretion in determining when to conduct a search – for example, when authorized to request that drivers submit to a “consent” search – they are more likely to perform consent searches when the driver is Black.9 In light of the well-documented racial bias in the 2 Riley v. California, 134 S.Ct. 2473 (2014). 3 Riley v. California, 134 S.Ct. 2473, 2484 (2014). 4 Riley v. California, 134 S.Ct. 2473, 2495 (2014). 5 Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). 6 The Electronic Communications Privacy Act allows law enforcement to obtain cellphone call and text message logs that identify when a call or text was received or sent from the user’s cellphone provider. See 18 U.S. Code § 2510 et seq. 7 Interactions includes stops, tickets and searches conducted by law enforcement. 8 U.S. Dep’t of Just., Bureau of Just. Stat., Police Behavior during Traffic and Street Stops, 2011 (2013), https://www.bjs.gov/content/pub/pdf/pbtss11.pdf (finding relatively more Black drivers were pulled over in traffic stops than White drivers and Black and Latino drivers were ticketed and searched at higher rates than White drivers). 9 Sharon LaFraniere & Andrew W. Lehren, The Disproportionate Risks of Driving While Black, N.Y.TIMES, Oct.24, 2015, https://www.nytimes.com/2015/10/25/us/racial-disparity-traffic-stops-driving-black.html (stating “[i]n the enforcement of motor vehicle laws, it is foreseeable that the use of textalyzer technology will lead to bias and selective enforcement, which will ultimately reduce the efficacy of using the textalyzer to address distracted driving. Conclusion Distracted driving is a serious concern, but there are already laws that allow law enforcement to access phone records to determine whether it was the cause of an accident. Instead of creating technological solutions that compromise constitutionally protected privacy rights and that are unlikely to alter driver behavior, innovators should seek technological solutions that will incentivize safer driving as well as voluntary driver education programs that cause driver’s to avoid dangerous driving practices involving electronic devices.