NHTSA's Voluntary Roadside Blood-And-Saliva Survey Heads To Seattle With A Much Greater Emphasis On 'Voluntary'

from the it-can-be-taught dept

Although it's already been burned twice for its intrusive, not-mandatory-but-it-sure-looks-that-way "roadside surveys," the NHTSA (National Highway Traffic Safety Administration) isn't letting a lot of bad press, a lawsuit and a Congressional investigation slow down its blood-and-saliva collections. After two straight debacles (Texas and Pennsylvania), the NHTSA is headed to Seattle in hopes of gauging the effects of newly-legal weed on the driving population. (h/t to Techdirt reader DeComposer)

Government-hired survey teams will soon ask hundreds of Washington state motorists to answer questions and provide samples of breath, saliva and blood — all to give safety and police agencies a clearer sense of how many people drive impaired.

The roadside surveys are voluntary, and participants will be paid up to $60, under the federally funded project this summer.

The only remaining question is how these will be handled. On its two previous attempts, the NHTSA sent an independent contractor to handle the blood draws and saliva collection. And both times, local law enforcement provided officers, vehicles and barricades -- all of which suggested to several motorists that these voluntary collections were far from voluntary. From what's being reported here, it appears that more effort is being made to ensure drivers know these surveys are indeed entirely optional.

Crews will not block or slow traffic, officials say. Drivers at a stoplight would encounter civilians wearing orange vests, with signs saying “Paid Voluntary Survey,” then be asked if they wish to participate.

The article also states that collected data will be destroyed when the report is published and that names and license numbers won't be recorded. The latter sounds ideal, but the reality of the situation is that, unless things have changed, consenting to a blood draw still requires the signature of the volunteer, which means there will be some sort of recording going on. And surveyors will still be collecting non-consensual "samples" using passive alcohol detectors. The defenders of this practice argue that these detectors are actually consensual (due to consent given by volunteering to be surveyed), even though people aren't notified about their existence until after they've already had their breath sampled.

The ACLU is keeping an eye on the NHTSA's newest survey, which, so far at least, seems to be headed towards a more obviously voluntary presentation. That's a huge improvement over its previous efforts and is likely a good indicator of how these will be handled in the future. Law enforcement officers will again be on hand to protect the cash payout and offer options to impaired drivers, but their presence will be far more muted than past instances.

If the NHTSA can learn from its mistakes and move on in a more honest and transparent fashion, it should be able to entice enough volunteers with its cash payments to present credible data at the end of its collection period. If it decides to go back to the old way, however, it will find it increasingly difficult to secure any participation at all.

Filed Under: blood, nhtsa, police, saliva, seattle, survey

Texas Police Set Up Checkpoints To Collect Blood And Saliva From 'Volunteers'

from the all-completely-voluntary,-if-you-don't-mind-playing-20-questions-with-a-cop dept

Remember that American ideal of being able to travel freely within the country without being detained or questioned by government officials? Well, the inland creep of CBP (a.k.a. border patrol) checkpoints has made traveling within certain US states without being asked about your citizenship a thing of the past. The installation of TSA agents in every airport means producing identification repeatedly and possibly enduring an awkward conversation with a Behavioral Detection Officer as he or she performs a mental coin flip.

Now, thanks to the National Highway Traffic Safety Administration, citizens can't even travel across a single city without being routed off the road and asked (nicely) to cough up a little DNA.

The Fort Worth Police Department (FWPD) installed the roadblock north of the city during daytime traffic. They flagged down some motorists at random and asked them to give breath, saliva, and blood samples. The FWPD claims the effort was "100 percent voluntary" and anonymous.

It acknowledges that most of the drivers had broken no law, but it said the effort was valuable to federal contractors working to complete a 3 year, $7.9M USD survey on behalf of the The National Highway Traffic Safety Administration (NHTSA) aimed at collecting medical data for use in combating drunk driving.

The problem is, some drivers didn't get the impression this DNA sampling was voluntary.

Kim Cope contacted KXAS after she was pulled over because she said it “just doesn’t seem right that you can be forced off the road when you’re not doing anything wrong.”

But Cope questioned how it could be voluntary if uniformed officers forced her off the road.

“I gestured to the guy in front that I just wanted to go straight, but he wouldn’t let me and forced me into a parking spot,” she recalled. “They were asking for cheek swabs… They would give $10 for that. Also, if you let them take your blood, they would pay you $50 for that.”

The contractors also wanted to test her breath for the presence of alcohol, but weren’t willing to pay anything for it.

“I finally did the Breathalyzer test just because I thought that would be the easiest way to leave,” she explained.

When cops flag you down and route you toward a detainment area (like a parking spot), while using smiles and using words like "please," it still often seems to citizens like they have no choice but to comply. They do have a choice, but the cops aren't going to let them know that.

Obviously, if officers are going to pay you for a blood sample or cheek swab, then the "detainment" is obviously voluntary. Cops normally don't pay citizens for DNA they collect. But Cope's experience shows that even voluntary "surveys" seem mandatory when officers make every effort to conceal the voluntary aspects of the stop until after the citizen has already complied. These officers could have placed a sign up front stating it was a NHTSA survey and that volunteers would be paid, but that probably would have resulted in a whole lot of citizens deciding $10 or $50 just wasn't worth the hassle.

Worse yet is the fact that even if you opted out of everything including the unpaid breathalyzer test, the Ft. Worth police department was still performing one check without securing permission from any drivers.

Apparently on the consent form that officers gave "voluntary" participants, fine print informed the driver that [the police had taken] "passive alcohol sensor readings before the consent process has been completed."

It's unclear whether drivers could ask for that data to be deleted if they didn't want it to be collected, but what is clear is that most drivers did not notice the fine print or were unable to read it. As a result what the FWPD claimed was a "voluntary" scientific study became what appears to be an involuntary search of citizens who were breaking no law.

The NHTSA defended these non-stops by stating everything was "voluntary" and that law enforcement officers were only on hand for "safety" reasons. But the passive alcohol test wasn't voluntary. And the officers never bothered to point out stopping was voluntary until after the test subjects had actually stopped.

DailyTech points out the NHTSA has done this sort of testing four other times since 1973, with the last one being in 2007. But none of those utilized passive alcohol sensors to gather additional "data" without the volunteers' approval.

The Ft. Worth Police Department issued this non-apology to irritated Texans.

We apologize if any of our drivers and citizens were offended or inconvenienced by the NHTSA National Roadside Survey.

Sorry, but that's all wrong. The correct phrasing is:

We apologize for the offensive and inconvenient "survey" we participated in.

Something addressing the passive alcohol testing would have been nice to see as well.

Beyond the problematic tactics deployed and the intrusiveness of the "survey" (which is in no way mitigated by the NHTSA's offer to pay people for their bodily fluids) is the fact that voluntary stops are frequently portrayed by law enforcement officers as obligatory.

Even if you ignore all the cop talk that's deployed ("please," "could you do me a favor?" "would you mind…") to steer people towards compliance while still giving LEOs an out when it comes to accusations of wrongful detainment ("they were always free to go"), you still have a power imbalance that instantly creates a deferential attitude in most citizens. Even if one believes they are well within their rights to drive through a "voluntary" checkpoint, they often realize compliance is the path of least resistance. Why put yourself on a cop's "radar" when you can simply blow into a tube and be on your way?

This is how rights disappear. It doesn't take audacious actions to destroy civil liberties. All it takes is a small amount of force, applied frequently and repeatedly.

Filed Under: blood, checkpoints, dna, police, saliva, texas