Drivers Subject To 'Textalyzer' Scanning Without Consent In New NYC Bill

A New New York City bill would allow authorities to use a device called “Textalyzer” (word play on Breathalyzer) to scan if a person used their phone while driving. This is supposed to detect when accidents happen because of distracted driving.

Under the new legislation, proposed by New York State Senator Terrence Murphy (R-Westchester) and Assembly Assistant Speaker Felix Ortiz (D-Kings), as well as by the Distracted Operators Risk Casualties (DORCs) awareness organization, drivers caught in accidents would be subject to the Textalyzer, and the consent would be presumed automatically.

That means the police won’t need the drivers’ consent when checking their devices for texting activity. If the drivers refuse to allow their phone to be scanned, their license could be suspended or even revoked.

The bill seems to have been crafted with good intentions in mind, if nothing else. Evan Lieberman, the son of DORCs co-founder Ben Lieberman, was killed in a car accident in 2011 by a distracted driver in New York. The bill has been dubbed “Even’s Law” in his memory and to raise awareness about the issue of texting-and-driving.

"When people were held accountable for drunk driving, that's when positive change occurred," Lieberman said in a press release. "It's time to recognize that distracted driving is a similar impairment, and should be dealt with in a similar fashion. This is a way to address people who are causing damage."

The “Textalyzer” device supposedly can’t collect any of the content from the phone. A warrant would be required for that. The device would only scan for recent activity on the phone.

Potential Issues With The Technology

What’s not clear is how the device actually works and how reliable and accurate it is. Does it scan only for wireless services such as phone calls and SMS? If so, would putting the phone in Airplane mode hide the activity from the Textalyzer?

Also, does it scan for activity in apps such as iMessage and Whatsapp? If it’s tailored for certain applications, then it may not work with those that are encrypted. All encrypted communications look like noise, and it’s not clear if this device would be able to capture the metadata.

If the Textalyzer works by detecting, say, a higher temperature of the smartphone to understand whether the device was recently used, that would also pose another set of issues. What if the phone was exposed to the sun on a sunny day, and it got hot? Does the Textalyzer know the difference?

Then there are also issues such as other people in the car using the phones, but not the drivers themselves. How would the device or the police officers know the difference?

How accurate the device is in achieving its proposed goal of identifying when a person used the phone while driving makes all the difference. If the evidence gathered is flawed from the start, then Courts can’t rely on it to make a good judgement and may start disregarding such evidence. Defense lawyers could certainly make a strong case against it.

It also remains to be seen if taking someone’s device and scanning it against their will is even constitutional, but this would have to be tested in Court in the coming years, if the Senate bill becomes law in New York City.

Lucian Armasu is a Contributing Writer for Tom's Hardware. You can follow him at @lucian_armasu. 

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Lucian Armasu
Lucian Armasu is a Contributing Writer for Tom's Hardware US. He covers software news and the issues surrounding privacy and security.
  • firefoxx04
    Does it know the difference between incoming and out coming? I fail to see how they can collect enough data to prove that a specific phone was sending information without collecting private information?

    This is nothing more than blanket surveillance. First they want to take away encryption and then they want to just listen to everything coming in and out. WAKE UP PEOPLE. VOTE SMART.
  • jkhoward
    This isn't the solution. There needs to be another way to prevent people from texting while driving. Vehicles need to be able to detect if the person is the driver, if they are, there mobile devices will be disabled until the vehicle isn't moving. I have been saying this for a long time, there needs to be an app for parents/adults to install on their phones where if you're moving over X speed, the phone is disabled.
  • firefoxx04
    Wow a down vote already. I am not supporting texting and driving. What I am supporting is privacy and not giving up privacy for safety.

    What if someone sends me a text? What if it is hands free texting? What if the passenger is texting on my phone (I do this frequently).

    Will this system see my internet traffic? What is being collected? So many questions that these stupid politicians cannot possibly answer.
  • d_kuhn
    We get way too hung up on the idea of 'privacy'. IMO it is not an invasion of a drivers privacy to determine if he/she was engaged in unsafe/illegal behavior while driving. They don't want to know the details of the text... just the physical actions of the driver while behind the wheel. You have no right to privacy around that information. Take your licks... learn your lesson... and leave the texting for later.
  • oczdude8
    This is stupid. Whats the point of checking to see if they were texting AFTER they kill someone? Ok, lets give the driver twice the fines, is it going to bring back someones loved one?

    We need prevention before we work on punishment. How about using Drones to take picture of drivers using their phones and have fines mailed to them? Similar to red light cameras or speeding cameras. I'm sure most people will think twice before even texting if they know at any moment a drone could catch them in the act. I think this is a MUCH bigger problem in todays society then speeding.

    Oh and there wouldn't be anymore of these conspiracy privacy concerns (at-least no new ones)
  • anathema_forever
    I think the issue for some people is that poorly understood technology added to poorly written law is a recipe for a bad things.
  • brandonjclark
    What about using NFC to disable anything but GPS or hands free calling?
  • Gam3r01
    This is not the solution here.
    I, for example, put my phone in a little shelf above my radio when I drive. If I get a call I ignore it when Im alone. When I have my girlfriend with me (most of the time I drive) she answers the phone for me and talks to whomever it is.
    And were back at square one, my word against theirs. Neither of us can prove who actually used the phone.
  • clonazepam
    Brought to you by Cellebrite.

    Cellebrite already has roadside devices to scrape the contents of a phone, so this technology would just dial it back a bit. If the legislation passes, Cellebrite would have to bid on the project, as would other tech firms.

    They'll just dial it back a bit. Ooh the puns.
  • USAFRet
    My last truck was killed by a texting driver. Hanging upside down from the seatbelt, covered in broken glass, was NOT the way I wanted to spend my lunch hour.
    You will likely not find a person more against 'phone use while driving' than I am.

    However, this proposed bill is simply stupid and hugely intrusive.

    "Excuse me, Officer? No, I don't have my cell phone with me."