Is the Answer to Distracted Driving More Police Technology?

Is the Answer to Distracted Driving More Police Technology?

Recent crack downs on distracted driving might go one step further with the introduction of new technology for Canadian police.

The ‘Textalyzer’ is a device that would allow police to conduct roadside scans on cell phones belonging to distracted driving suspects.  The developer says that the results of these scans would be able to definitively prove whether the driver had been using the phone while driving or not, making these types of cases pretty open and shut. 

The idea of such a device is appealing given the dangers posed by distracted driving behaviour.  According to date from Transport Canada, distracted driving was a factor in approximately 21 per cent of fatal collisions and 27 per cent of serious injury collisions in 2016.  By 2018, it was estimated that about nine fatalities a day were related to distracted driving in Canada. 

Given the prevalence of this behaviour, and the significant threat that it poses, any efforts to help curb it would be welcome. 

But the ‘Textalyzer’ device isn’t the answer.   It is not quite as bullet-proof as one may hope, and concerns over privacy may outweigh any public advantage of using it in the first place.

For starters, scanning a motorists’ phone using this device in relation to a distracted driving investigation would constitute a search – and what’s more, a search without a warrant.  The legal standard for conducting a search of this nature is relatively high. 

While police do have the power to conduct warrantless searches on mobile phones in some circumstances, these circumstances are relatively limited and they do have free-range to access all of the data in your device. 

For example, police can only search your phone for information that they are looking for incidental to an arrest or an investigation upon reasonable grounds.  They cannot browse your device or go on a fishing expedition to find evidence of a crime.  Generally speaking, police must tread carefully when conducting a warrantless search of this nature.   

If your phone is password-protected, your right to privacy is only enhanced.  After all, a person is not required to provide police with information related to their password as we all have a protected right to silence in this country. 

But could the ‘Textalyzer’ scan a device, even if it is password protected?  And what exactly encompasses the scope of the scan itself?  Would police be able to gain access to unauthorized information, outside the scope of a distracted driving investigation? 

 In a world where people keep increasingly sensitive and confidential information on their mobile devices, these are all serious questions which could carry serious implications.  This is particularly so for professionals, like lawyers, who may carry privileged information about their clients on their phones. 

Concerns about what data police may access, where it may be retained and what purposes it may be used for with a device like the ‘Textalyzer’ are anything but benign.

What’s more, the practical utility of such a device is questionable at best. 

While the ‘Textalyzer’ seemingly seeks to provide new and improved investigative techniques to police as they attempt to combat public safety concerns related to distracted driving, the reality of what it can do is vague and unproven. 

After all, using an electronic device while driving is not – in and of itself – illegal for most classes of drivers in this province, so long as they do so within the parameters of the law.

Using your phone in conjunction with a hands-free system and an approved phone mount in your vehicle does not contravene the law in most instances. 

 With advancements in technology, drivers are now able to send text messages and make phone calls using voice commands while driving, without ever touching their devices.  Finding a sent text message or telephone call with a time stamp is therefore not proof of an offence having occurred, depending on the licensing class of the driver and the hands-free system in question. 

Considering this, the practical utility of the ‘Textalyzer’ device becomes dubious at best. 

So, while curbing instances of distracted driving is desirable, the trade-off between investigative efficacy and erosion of privacy does not strike the right chord when it comes to this particular device.

Perhaps a better solution would be a simpler one – to put more money into public education campaigns around the dangers of distracted driving, while increasing visible enforcement initiatives on our roadways. 

This method is tried and true and does not carry the same sorts of dubious drawbacks as this still untested device. 

 You can also read this story as it appears in The Georgia Straight.