We’ve written before that multitasking is a killer, but in the driver’s seat the metaphor becomes literal. New technology aims to cut down on distracted driving — and the information it gathers might prove invaluable in personal injury lawsuits.
Texting while driving is increasingly being viewed as a public health crisis. And with good reason. Here are the horrible numbers, required preface to any discussion on the topic (just be glad I’m not making you watch one of the tear-jerker crashing-while-texting videos):
- According to the CDC, every day in the U.S., distracted driving kills 8 people and injures 1,161.
- The National Highway Traffic Safety Administration counts that in 2015, 3,500 people were killed and 391,000 injured by distracted drivers in the U.S.
- And those rates of distraction are up: more drivers are using handheld devices. Roads were becoming steadily more safe until recently. When 2015 road fatality numbers rose 8% from previous years, many attributed the sudden change to increased texting.
- Texting while driving makes a car crash 23 times more likely.
- And yet 77% of young adults believe they can safely text while driving.
For all of these reasons, concerned citizen lobbying groups say distracted driving should be treated with the same seriousness we hold for drunk driving (which has creating the ugly neologism “driving while intexticated”).
Many states have established some kind of law against using cell phones while driving, but a bill before the New York State Senate is taking things to the next level. They want officers on the scene of an incident to be able to immediately determine whether and how a cell phone was in use in the moments leading up to an accident, simply by plugging the phone into another device.
Introducing: the Textalyzer.
Like the Breathalyzer tests for intoxicated driving, the Textalyzer tests for distractions by revealing a phone’s activity prior to a crash. Police can plug in a cord to the phone and get a read-out in 90 seconds about the times and kinds of recent activities for that phone. It could also show a summary of apps that were open and in use, along with a record of screen taps and swipes.
In Breathalyzer-style protocol, the New York bill would recognize the act of driving a vehicle as “implied consent” for the Textalyzer to be used. Those who refuse to have their phones analyzed could have their driver’s license suspended.
The prototype of the Textalyzer has been developed by Cellebrite, an Israeli tech firm that likely helped the U.S. government crack into the San Bernardino shooter’s iPhone. Their current technology (called the ‘UFED Field Series’) can scrape “call logs, contacts, calendar, text messages, media files, and more.” But any technology ultimately used for collisions in the U.S. would have to be significantly dialed back.
That’s because there’s still a Fourth Amendment to consider. A 2014 Supreme Court Case (Riley v. California) found that the police need a warrant if they’re going to search a phone for information, even after someone has been arrested. However, Justice Alito wrote in a concurring opinion that state or federal legislatures could, “after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables.”
Proponents of the Textalyzer say this is just what the New York bill does: the device would report the general kinds of activity happening on the cell phone, but would black out any private information — police could not read who was contacted, what game you were playing, or what message you sent out. If they wanted to know names and numbers or other details, they would still need a warrant.
New York is the guinea pig to see if the Textalyzer can stand up to challenges from privacy advocates. But already legislators in Tennessee and New Jersey have expressed early interest in the device, along with cities like Chicago.
If the Textalyzer does take off, what effect would it have on personal injury cases?
First, the obvious: if cell phone usage were immediately recorded in the incident report, discovery could become greatly simplified. An example of the difficulty of getting those records can be found in the story of Evan Lieberman, a 19-year-old killed by a distracted driver (if the New York bill passes, it will be called Evan’s Law after him). The cause of the accident that killed Evan remained a mystery for months. Not only did police not follow up on investigations into cell phone use, the driver’s phone hadn’t even been removed from the car by police, and was rusting away in a junkyard for weeks. Finally his family successfully subpoenaed the driver’s cell phone records, and discovered he had been texting moments before the crash.
Getting cell phone records through a subpoena is routing practice for PI attorneys, but often carries its slew of headaches. See the New York case of Morano v. Slattery Skanska for a random example, where a plaintiff is chided for serving a subpoena duces tecum to the cell service provider instead of seeking authorization from the defendant; and where the court determines:
It is the opinion of the court that the mere fact that a defendant was in the possession of a cell phone at the time of an accident, without any witness testimony as to it being used at that time, would not entitle the plaintiff to said defendant’s cell phone records, since such a discovery request would amount to nothing more than a fishing expedition.
There are other obstacles in using cell phone records: occasionally the time stamps from cell towers aren’t synchronized, leading to timing discrepancies. This is one reason a number of expert witnesses focus wholly on analyzing the timing of calls and texts.
It’s not clear yet how much more reliable a Textalyzer analysis could be. Of course, evidence gleaned from the new technology is certain to be disputed by other expert witnesses. But having an immediate record of phone usage in the moments before an arrest could surely speed up a settlement.
And if early descriptions are accurate, then the Textalyzer should provide more and clearer information than is currently discoverable in call logs and text logs. For instance: cell service providers don’t record texts that were never sent (perhaps unsent because they were interrupted by a collision). And even more importantly: they don’t show web browsing. Someone could be swiping right and left on Tinder, updating their Facebook profile, writing an email, or Googling local texting-while-driving laws, and still have a squeaky clean phone record when the subpoena comes in. The Textalyzer technology promises to uncover this bad behavior, and record its presence in the police report. As app usage grows (does it seem like the kids only use Snapchat these days?), this kind of evidence will only become more important.
Even if the specific activities someone’s doing with their phone aren’t illegal, they could still make powerful arguments for distracted driving in a civil case. Perhaps the defendant was talking on the phone but not texting in a jurisdiction where that’s legal; perhaps they were simply scrolling through Facebook, and not typing anything in; perhaps they were even using a hands-free device — all the same, courts have found that drivers obeying cell phone statutes could still have their phone usage used as evidence against them in negligence cases.
This all sounds sweet to a PI attorney’s ears. But are there any downsides?
There are of course general privacy concerns. Some might be concerned that the current technology by Cellebrite already has the power to hack into almost any phone and retrieve any information. Can we trust that the device ultimately used will always block private information?
Secondly: it’s worth remembering that technology can always cut both ways. Even if your client didn’t cause a crash, it’s possible that police on-site will ‘Textalyze’ your client’s phone too, and that information could be used by the opposing party in their arguments as to your client’s slow response time or lack of alertness.
And big questions remain, like: what if you’re using your phone as a GPS device? Or: what if a passenger is using your phone on your behalf? But with so many dying from distracted driving, we might find that New York is ready to try something new. Plaintiff-side attorneys ought to be ready, too.