Legislator Thinks Warrantless Cell Phone Searches The Best Way To Combat Distracted Driving

from the BLOWOUT!!!!-ALL-RIGHTS-MUST-GO!!! dept

Fri, Jan 22nd 2016 6:30am — Tim Cushing

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.

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.

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.

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.

“If you make a law, it’s gotta be enforceable for us,” he said.

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.

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.

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Filed Under: 4th amendment, distracted driving, martin lalone, mobile phones, searches, vermont, warrants

47 Comments

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Anonymous Coward, 22 Jan 2016 @ 6:36am

I'd like to know how warrantless searches of cell phones combats distracted driving. For one, the car is stopped when a cop is searching your cell phone, so there is no danger of being distracted. So, where's the distraction? For the other? This is just an intrusion into our private lives to violate our privacy.
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Anonymous Coward, 22 Jan 2016 @ 6:46am

the best way to combat corrupt politics
The Police have the power to warrant-less office, cell phone, server, email, & financial information for ALL political officials.

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!
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Jason, 22 Jan 2016 @ 6:52am

missed opportunity?
Passenger behavior, or just having a conversation with them, can also be distracting to a driver. If Representative LaLonde truly cared about combating distracted driving, surely he should be trying to mandate full video and audio recording inside the car at all times, to be turned over to police (without a warrant) on request at a traffic stop. Or, maybe it would be easier if it was just streamed live to the police station. That would save a lot of time and effort, right?
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Anonymous Coward, 22 Jan 2016 @ 6:54am

This dumbshit needs to be striped of his position, and any co-sponsor of it.
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John Thacker, 22 Jan 2016 @ 6:56am

A rash of this going around. a similar one in California, proposed by California Assemblymember Jim Cooper’s (D-Elk Grove), who uses the "child porn" excuse. Over in New York there's one by Assemblyman Matthew Titone (D-Staten Island), who prefers the old standby of "terrorism" as the reason to bypass strong crypto.

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.
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Anonymous Coward, 22 Jan 2016 @ 7:08am

The moment I either hear the words "something must be done", or that turns out to be the point, I now become instantly suspicious, because BS is sure to follow.

I wish something could be done about that.
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Haywood (profile), 22 Jan 2016 @ 7:11am

I know this make me a target, but....
Anything that takes the cellphones out of drivers hands works for me. I hear all the anger; talking to a passenger, or whatever is just as distracting. Frankly the only thing I can think of that is as distracting is; excessive alcohol consumption.
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That One Guy (profile), 22 Jan 2016 @ 7:19am

Re: I know this make me a target, but....
Is using a cellphone while driving incredibly stupid, potentially putting the life of the driver and those around then at risk, and deserving a hefty fine for those that are caught doing so? Yes.

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.
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Haywood (profile), 22 Jan 2016 @ 7:27am

Re: Re: I know this make me a target, but....
Really no argument there, I'm normally a rights first sort of guy. I do find the level of concentration required to drive among the inconsiderate, self important users, well beyond what should be required to safely navigate the course. Compared to pre-cell days, the cars are at least twice as good, the drivers for the most part barely present.
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.
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PaulT (profile), 22 Jan 2016 @ 7:30am

"By "see," LaLonde means "look at web activity, text messages, recent phone calls or anything else that might indicate the phone was in use.""

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?
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PaulT (profile), 22 Jan 2016 @ 7:34am

Re: Re: Re: I know this make me a target, but....
Your problem would be with "inconsiderate, self important users", not phones. Plenty of people did all sorts of activity to distract them from the road, ranging from reading a newspaper to sexual activity, long before those devices were commonplace.
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Anonymous Coward, 22 Jan 2016 @ 7:38am

My actions were justified because the suspect's anus could have contained a gun.
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Anonymous Coward, 22 Jan 2016 @ 7:39am

"Implied consent" is a horrible precedent to rely on
Although you can argue that it does some good, "implied consent" has always seemed to me like another manifestation of "We find your rights to be inconvenient. We have a great rationale to demonize you. Therefore, your rights are void." Based solely on his use of "implied consent" as a justification, I would oppose this bill, even if I did not agree with Mr. Cushing about all the other problems with this bill.
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Anonymous Coward, 22 Jan 2016 @ 7:41am

Jesus. We've gone from "we only need this to catch terrorists" to "we now need to to catch drive-and-texters" pretty fast.
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Haywood (profile), 22 Jan 2016 @ 7:44am

Re: Re: Re: Re: I know this make me a target, but....
Reading is equal easily to the cell phone, but at least with some forms of sexual activity, you can still see the road. I disagree with conversing with passenger, even if you are the moron who must look at the other person, surely you would notice when their eyes got as big as saucers as you steer into the path of an oncoming vehicle, or attempt to rearend the vehicle in front. The other member of the cell conversation does not have this connection.
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Anonymous Coward, 22 Jan 2016 @ 7:46am

Re:
This sounds like an enforcement nightmare privacy issues aside. I don't see how they would even be able to tell if someone was driving when the text message was sent. If it was sent two minutes ago...maybe the driver had pulled over to send a text message. And how accurate are the time stamps on phones anyway. Also,would the time stamp be when the message was sent or when it went through which could be different if sent in an area with no/bad coverage....And I am sure it is probably different for different OS/etc.
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Anonymous Coward, 22 Jan 2016 @ 7:46am

Re: Re: Re: Re: I know this make me a target, but....
...Plenty of people did all sorts of activity to distract them from the road, ranging from reading a newspaper to sexual activity, long before those devices were commonplace...

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.
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PaulT (profile), 22 Jan 2016 @ 7:57am

Re: Re: Re: Re: Re: I know this make me a target, but....
"Are there any statistics about this?"

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.
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Anonymous Coward, 22 Jan 2016 @ 8:02am

Re:
I am curious how the officer would know the driver has a cell phone if not visible. Will they just assume everyone does and search the car if they they don't hand one over.
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Anonymous Coward, 22 Jan 2016 @ 8:09am

If you really think about it, here is a list of things that are distracting to drivers on the road:

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.
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Anonymous Coward, 22 Jan 2016 @ 8:11am

Let's ban cops on the road because they're distracting
There are so many drivers I've seen that act differently (not necessarily better) when they see a cop car. I myself have gotten a ticket because I had a cop that was tailgating me and I was paranoid that he was going to pull me over and glancing in my rearview mirror every few seconds that I didn't notice the pedestrians that had stepped into the crosswalk. They stepped back on the curb but the cop still gave me a ticket for not yielding to them.
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Anonymous Coward, 22 Jan 2016 @ 8:20am

Re: Re:
How does the officer know if the phone they have been given is the one in the person uses, or the one kept specially for handing over to the cops?
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Anonymous Anonymous Coward, 22 Jan 2016 @ 8:37am

Re:
Road Signs
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?)
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Anonymous Coward, 22 Jan 2016 @ 8:40am

Re: Re:
the thoughts in the driver's head
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Ninja (profile), 22 Jan 2016 @ 8:56am

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?

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
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Chris-Mouse (profile), 22 Jan 2016 @ 9:09am

Why is this needed at all?
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.
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Pixelation, 22 Jan 2016 @ 9:24am

New Ransomware App
Gee officer, my phone got ransomware. It'd be awesome if you could get it decrypted!
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Anonymous Coward, 22 Jan 2016 @ 9:29am

Re: the best way to combat corrupt politics
1. piggies r bad drivers
2. THEY DRIVE while using a fraking laptop open beside them, mousing and typing WHILE DRIVING, and WE r the bad drivers ?
GTFOH
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mattshow (profile), 22 Jan 2016 @ 9:43am

This bill requires officers to have "reasonable suspicion" that a person was using their phone while driving.

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.
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Anonymous Coward, 22 Jan 2016 @ 2:43pm

This is still America God Damn It. If you insist on war we the people will give you one. And keep your fornicating hands away from my shit.
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Anonymous Coward, 22 Jan 2016 @ 3:15pm

Re:
Exactly my thought.
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.
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DigDug, 22 Jan 2016 @ 3:43pm

Demi is ready to hand you her Galactically Stupid award...
Martinette LaBlonde, where would you like it?

I think the rest of the country would like it shoved up your arse, except that's already occupied by your head.
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nasch (profile), 23 Jan 2016 @ 7:16am

Re: Re: Re: Re: Re: I know this make me a target, but....
And "inconsiderate, self important users" are a problem behind the wheel even without distractions.

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.
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nasch (profile), 23 Jan 2016 @ 7:18am

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.
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nasch (profile), 23 Jan 2016 @ 7:19am

Re:
We've gone from "we only need this to catch terrorists" to "we now need to to catch drive-and-texters" pretty fast.

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.
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John Fenderson (profile), 23 Jan 2016 @ 8:27am

Re: Re: Re: Re: Re: Re: I know this make me a target, but....
The #1 cause of accidents due to distracted driving is people eating while they drive.

Cell phones don't enter into it.
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John Fenderson (profile), 23 Jan 2016 @ 8:30am

Re:
"Forgive me if the law does prohibit this, but wouldn't it be legal to use the phone hands-free? "

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.
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John Fenderson (profile), 23 Jan 2016 @ 8:32am

Re: "Implied consent" is a horrible precedent to rely on
I agree. As used in law, "implied consent" is an oxymoron. It's just code for the elimination of a right by the state.
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John Fenderson (profile), 23 Jan 2016 @ 8:34am

Re: Let's ban cops on the road because they're distracting
I have a ploicy of slamming on my brakes when a cop tailgates me. Once, the cop rear-ended me as a result. My answer to him when he asked why I slammed on the brakes: "a squirrel ran in front of my car".

It helps that in my state, any rear-end accident is automatically the fault of the car that did the rear-ending.
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Pissed off damaged goods, 23 Jan 2016 @ 9:32am

Its not just about time but common sense
have a neck ache 2 years following an accident when a woman struck my vehicle from the rear. My vehicle has been struck twice more since then. When I climbed out of my vehicle holding my neck, I observed the woman getting out of her Lexus with an I phone in her hand. I didn't think I needed medical treatment then and I easily settled with State Farm for minimal repair costs to my vehicle.

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.
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Anonymous Coward, 23 Jan 2016 @ 11:07am

Re: Re: Re: Re: Re: Re: Re: I know this make me a target, but....
I'm going to go out on a limb and say you're wrong. Not that cell phones aren't number 1, but that they don't enter into it.

http://www.distraction.gov/stats-research-laws/facts-and-statistics.html

Us department of transport say's it's a problem.
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Anonymous Coward, 23 Jan 2016 @ 11:11am

Re: Re: Re: Re: Re: Re: I know this make me a target, but....
http://www.nsc.org/learn/NSC-Initiatives/Pages/priorities-cell-phone-crash-data.aspx

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?
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Anonymous Coward, 23 Jan 2016 @ 11:53am

Re: Its not just about time but common sense
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.

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.
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Anonymous Coward, 23 Jan 2016 @ 11:55am

Re: Re: Its not just about time but common sense
but I really do think that another solution exists that doesn't provide severe drawbacks.

Of course it should say that I DON'T think...
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nasch (profile), 23 Jan 2016 @ 2:13pm

Re: Re:
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.

I have heard that in person conversations are far less distracting than phone conversations.
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John Fenderson (profile), 24 Jan 2016 @ 8:00am

Re: Re: Re: Re: Re: Re: Re: Re: I know this make me a target, but....
I was unclear. I didn't mean cell phones weren't a distraction, I meant that they weren't a part of eating while you drive.
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John Fenderson (profile), 24 Jan 2016 @ 8:03am

Re: Re: Re:
Ah, you are correct. I was going by old studies. There have since been studies that indicate that passengers aren't as distracting. So, at the very least, this is not a settled issue.
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