Legislator Thinks Warrantless Cell Phone Searches The Best Way To Combat Distracted Driving
from the BLOWOUT!!!!-ALL-RIGHTS-MUST-GO!!! dept
The Supreme Court's Riley decision made it clear: law enforcement cannot search cell phones without a warrant. Seems pretty straightforward. Cell phones aren't mere "containers" -- they contain a great deal of information that has historically been afforded a reasonable expectation of privacy. Get a warrant.
Rep. Martin LaLonde of Vermont feels this is just too much privacy, especially when there's distracted driving that needs to be punished.
H.527, introduced by Rep. Martin LaLonde, D-South Burlington, would allow law enforcement officers to see a driver's phone or other electronic device, to see if it was being used.By "see," LaLonde means "look at web activity, text messages, recent phone calls or anything else that might indicate the phone was in use." All without a warrant, and based on nothing more than an officer's suspicion that the driver may have been "distracted."
LaLonde, another legislator who seems to have little grasp of the particulars of his trade (other laws, the Constitution) says this won't be an excuse for police to go "rummaging" through drivers' phones. In support of this assertion, he states that he has no idea what limits will be in place or how any of this will actually work.
[T]he chief sponsor of the bill said he hasn’t “really thought about” what, exactly, would be fair game for a warrantless search under his bill.Here's a stab at narrowing the search.
“Essentially, it’s ‘show me your text log,’” he said.Whatever the fuck that is. To figure out whether or not a driver has been texting, the officer will have to look at a few messages. What if the officer comes across a message that sounds like code for a drug deal? Would it be considered "plain sight," what with the law authorizing a quick peek at recent activity?
No man is an island, it has been said. LaLonde may be the exception.
No other state allows warrantless searches to combat phone use while driving.LaLonde is trying to equate distracted driving with impaired driving. While the tragic outcomes of these two behaviors may be similar, the evidence gathered is worlds apart.
LaLonde said he looked at the precedent of breathalyzer tests. Anyone who drives a vehicle on a highway in Vermont is implied to have given consent to take a breath test if an officer suspects him of driving drunk. Refusing to do so can be introduced as evidence in a criminal proceeding.The privacy impact of giving police carbon dioxide and giving police access to a cell phone aren't comparable. While the originating actions could both result in criminal charges, only one would allow officers to access a wealth of personal information without a warrant. There's only so much abuse an officer can perform with a breathalyzer. An unlocked phone, though? That's a fishing expedition waiting to happen.
Under LaLonde’s bill, a driver who refuses police access to his phone would get the same penalty he’d get if he was, in fact, texting.
It's not just civil liberty advocates and people with common sense that have problems with LaLonde's proposal. Local law enforcement officials don't seem particularly enamored with the legislation either.
Orange County Sheriff Bill Bohnyak, president of the Vermont Sheriffs Association, said he would support the bill, though he doesn’t want to infringe on anyone’s rights.Thanks for the 4thA hat tip, Sheriff. That's mighty thoughtful, especially for someone who also heads the local law enforcement union. But why would you support a bill you think might infringe on people's rights? Are you hoping the Supreme Court will reverse its decision in the next few months? Or are you expecting the War on Terrorism to strip away what's left of the Fourth Amendment now that the War on Drugs has had its way with with for four decades?
One of Bohnyak's deputies has his own concerns about the bill… but they're strictly logistic.
Deputy Bariteau, who spends hours patrolling the roads of Orange County looking for distracted drivers, said he’s concerned about some of the practical aspects of LaLonde’s proposal. For example, he said, there are a lot of different phones out there, and officers might not know how to use all of them.Warrantless cell phone searches are pretty much illegal, but the only thing bothering the deputy is that some phones might go unsearched because of a lack of officer skillz.
“If you make a law, it’s gotta be enforceable for us,” he said.
Finally, LaLonde defends his proposal by offering up the stupidest, most asinine defense of privacy violations: the "I, for one, welcome our new privacy-violating law enforcement overlords" cliche.
“Personally, if I’m in a car and I’ve been text messaging, I should expect narrow privacy,” he said.Here's an idea: if you expect less privacy, then behave accordingly. Hand over your phone along with your license and registration and sign the search consent form. Enjoy your self-imposed lowered expectation of privacy on a one-to-one basis. Don't forget to ask officers to search your trunk, glove compartment and anus, Rep. LaLonde, because those are all places people have been known to hide contraband and you're certainly not carrying any of that, right? Be the hero Vermont neither wants nor deserves. But don't force it on your constituents.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, distracted driving, martin lalone, mobile phones, searches, vermont, warrants
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
the best way to combat corrupt politics
Now that we have seriously let in terrorists by the front we we must consider that at least one of them has managed to infiltrated Local, State, and Federal Government institutions.
This SERIOUSLY needs to be thrown in their FACES!
[ link to this | view in chronology ]
Re: the best way to combat corrupt politics
2. THEY DRIVE while using a fraking laptop open beside them, mousing and typing WHILE DRIVING, and WE r the bad drivers ?
GTFOH
[ link to this | view in chronology ]
missed opportunity?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
It's not all Democrats proposing these things, though, as Feinstein (D-CA) and Burr (R-NC) at the federal level claim that they're going to introduce a bill to do something similar. Though at least introducing a bill is different than actually passing something in all these cases.
[ link to this | view in chronology ]
I wish something could be done about that.
[ link to this | view in chronology ]
I know this make me a target, but....
[ link to this | view in chronology ]
Re: I know this make me a target, but....
It is bad enough to strip away rights? No.
Punish those stupid enough to talk/text while driving in other ways, but don't start stripping out basic rights to do so.
[ link to this | view in chronology ]
Re: Re: I know this make me a target, but....
It is to the point where autonomous cars would be a plus in my book, and I truly love driving. I have millions of miles under my belt, & can survive out there, but it is still damn annoying.
[ link to this | view in chronology ]
Re: Re: Re: I know this make me a target, but....
[ link to this | view in chronology ]
Re: Re: Re: Re: I know this make me a target, but....
[ link to this | view in chronology ]
Re: Re: Re: Re: I know this make me a target, but....
Are there any statistics about this? Not defending that behavior (it's not defensible) but it seems like we hear about more accidents resulting from cel phone (or device) distraction than any other distraction.
And "inconsiderate, self important users" are a problem behind the wheel even without distractions.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: I know this make me a target, but....
No, but distractions for stupid reasons definitely did happen before phones.
"it seems like we hear about more accidents resulting from cel phone (or device) distraction than any other distraction"
That doesn't mean they're happening more often because of phones. The 24 hour news cycle and internet reporting means you hear a lot more about all sorts of things than you did 20 years ago whether they happen more often or not.
"And "inconsiderate, self important users" are a problem behind the wheel even without distractions."
Oh, I definitely agree there.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: I know this make me a target, but....
There's some figures here, and a look at why cellphone accidents are unreported.
Turns out dead people and liars don't crash because of their cellphone, who'd a thunk?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: I know this make me a target, but....
I heard that certain people are more or less bound to be distracted drivers. If they don't have a cell phone, they'll find something else to distract themselves with - playing with the radio, doing a crossword puzzle, whatever. That group of people is the main reason why we need autonomous cars. The other is that even most of the other people who are paying attention aren't all that good at driving.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: I know this make me a target, but....
Cell phones don't enter into it.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: I know this make me a target, but....
http://www.distraction.gov/stats-research-laws/facts-and-statistics.html
Us department of transport say's it's a problem.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: I know this make me a target, but....
[ link to this | view in chronology ]
Forgive me if the law does prohibit this, but wouldn't it be legal to use the phone hands-free? If so, surely it would be legal to use Siri or some other voice command system to send texts while driving, for example? Phone calls at the very least would be legal, unless this jurisdiction has a blanket ban on any activity at all (in which case, do they also ban talking to passengers, or is this a law that only applies when there's a magical electric box involved?)
Also, none of those logs would show you whether the driver was the one using the phone. According to that logic, if I hand my phone to a passenger to send a text or look up our destination specifically in order to avoid driving distracted, I can now be prosecuted for that even though I'm not using the phone?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
Forgive me if the law does prohibit this, but wouldn't it be legal to use the phone hands-free?
I think that varies by state. No idea what Vermont's laws are.
[ link to this | view in chronology ]
Re:
It depends on the state. However, using a phone hands-free doesn't eliminate the problem. Simply engaging in conversation with someone (whether over the phone or with them physically in the car) distracts drivers every bit as much as holding a phone to their heads.
[ link to this | view in chronology ]
Re: Re:
I have heard that in person conversations are far less distracting than phone conversations.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
"Implied consent" is a horrible precedent to rely on
[ link to this | view in chronology ]
Re: "Implied consent" is a horrible precedent to rely on
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
To be fair, texting and driving is a WAY bigger threat in the US than terrorism. Not that I agree with this bill or anything.
[ link to this | view in chronology ]
emergency sirens (police cars, fire trucks, ambulances)
pedestrians
cars
trucks
construction workers
traffic lights
trains
buses
taxi cabs
bicyclists
cell phones
GPS devices
radio
and the list goes on and on. The only way to eliminate distractions for drivers is to ban all vehicles from public roads.
[ link to this | view in chronology ]
Re:
Advertising Billboards
Street Signs
Address Numbers
Dark Spaces between Street lights (I recommend getting rid of the street lights)
Good Looking members of the opposite sex
People in other cars
VW's (ever play punch buggy?)
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Let's ban cops on the road because they're distracting
[ link to this | view in chronology ]
Re: Let's ban cops on the road because they're distracting
It helps that in my state, any rear-end accident is automatically the fault of the car that did the rear-ending.
[ link to this | view in chronology ]
Tbh there was a case here where a phone was smuggled into a prison. Anally. So technically this bill includes cavity searches, I guess. /derp
[ link to this | view in chronology ]
If a cop suspects cellphone use while driving, lay charges. Then use a subpoena to obtain cell records from the provider.
the cop won't need evidence at the side of the road. The evidence is only needed at the trial.
[ link to this | view in chronology ]
New Ransomware App
[ link to this | view in chronology ]
If a cop sees someone using their phone while driving, they can already issue a ticket . In that situation, the only thing this would do would provide the police with additional evidence to use in case the ticket were challenged. Is this really a pressing problem? Are huge numbers of distracted driving tickets successfully being challenged on the basis of a lack of evidence?
If not, the only thing this bill will cover is that narrow range of circumstances when the cop has "reasonable suspicion" a person was using their phone but isn't confident enough to write a ticket based on what they saw. That seems a pretty small gain from a pretty big privacy loss.
[ link to this | view in chronology ]
Re:
There is no way the officer can tell if a text, from even 1 minute ago, was sent with voice control, from a parked car, by a passenger or even by automation (example: automatically sending a text to the girlfriend based on GPS position that you are on the way home) unless he saw that phone in the hands of the driver, while that person was driving.
There is no proof of anything in a phone, unless you take that phone to a technical expert or start giving out fines without regard for the law.
This is either a powergrap for more access or another politician who is wasting everyones time and tax money because he couldn't be bothered to learn the slightest thing about technology before he condemmed it.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Demi is ready to hand you her Galactically Stupid award...
I think the rest of the country would like it shoved up your arse, except that's already occupied by your head.
[ link to this | view in chronology ]
Its not just about time but common sense
Now I have pondered this long and hard since and after seeing so many people texting or communicating on their cell phones while driving, I have a new business model for which I'll share for free now.
Video record and identify people as they are operating their motor vehicles while simultaneously texting or otherwise driving distracted with their cell phones in their face. Next, discover their identity and research their insurance company and notify them. Sue their insurance companies if that insurance company has not taken every means available to warn their insured policy holders to drop all use of the cell phone distractions while driving, etc..
Law enforcement not deterring driving while dangerously distracted use of cell phones should be illegal. Cell phone carriers not cooperating with attempted discovery as to whether a person was operating their cell phone device at the exact moment of an accident could be sued for obstruction of justice, civilly.
[ link to this | view in chronology ]
Re: Its not just about time but common sense
In principle I agree with you. People who operate their cellphones by hand while driving are special kind of bastards, they deserve the status of drunk drivers and it would be great if there was a method to determine this other than witnesses.
Cops do already deter mobile phone usage. With the possibility of voice control and automation, how do you expect them to determine, other than visually, that a driver was using the mobile illigally?
It would be great if there were a system to determine this, but do you think that there is a chance that this system will be used only for this?
You can bet that such a system will be expanded by law to include more and more. I do not and will not trust any system that is not neutral in a way that no human could ever be, to watch my movements like this.
I feel for you, because like many others I know people who have been severely affected by traffic accidents.
It is an imperfect solution we have today, but I really do think that another solution exists that doesn't provide severe drawbacks.
I put my faith in selfdriving cars to be the solution. It will take decades, but most often the quick and dirty methods will end up worse.
[ link to this | view in chronology ]
Re: Re: Its not just about time but common sense
Of course it should say that I DON'T think...
[ link to this | view in chronology ]