Nevada split on bill for phone-scan tech

Ben Lieberman, whose 19-year-old son died in a crash involving a driver who had been texting, is urging support for a legislative proposal that would allow Nevada police to use a device that connects to cellphones and searches for user activity.
Ben Lieberman, whose 19-year-old son died in a crash involving a driver who had been texting, is urging support for a legislative proposal that would allow Nevada police to use a device that connects to cellphones and searches for user activity.

CARSON CITY, Nev. -- Most states ban texting behind the wheel, but legislation proposed in Nevada would make the state one of the first to allow police to use a contentious technology to find out whether a person was using a cellphone during a car crash.

The measure is igniting privacy concerns and has led lawmakers to question the practicality of the technology, even while acknowledging the threat of distracted driving.

If the Nevada measure were approved, then it would allow police to use a device known as the "textalyzer," which connects to a cellphone and looks for user activity, such as opening a Facebook messenger call screen.

It is made by Israel-based company Cellebrite, which says the technology does not access or store personal content.

The technology has not been tested in the field and is not being used by any law enforcement agencies. The company said the device could be tested in the field if the Nevada legislation passes.

Advocate Ben Lieberman, who lost his 19-year-old son to a crash in New York in which a driver had been texting, has become the face of the push for the device.

The New York resident earlier this month urged a panel of Nevada lawmakers to support the measure, saying distracted driving should hold a greater social stigma.

"When I was growing up, drunk driving was a joke. Now it's not a joke," he told Nevada lawmakers. "Device use is a joke. Make it so it's not funny."

A similar measure introduced in 2017 failed in the New York Legislature, but lawmakers there are considering it again.

Opponents have raised concerns that the measure violates the Fourth Amendment, which protects against unreasonable search and seizure.

Jay Stanley, a senior policy analyst at the American Civil Liberties Union, also asked how the software will work and how the public can ensure it doesn't access personal content.

Lieberman points to a paper by Ric Simmons, a professor at Ohio State University's law school, arguing that testing a cellphone after a crash is "minimally intrusive" and does not violate the Fourth Amendment.

In the initial version of the Nevada proposal, drivers who refused to have their phones checked would have faced 90-day suspensions of their driver's licenses. An amendment by the measure's sponsor, Democratic Assemblywoman Michelle Gorelow, withdrew the penalty and said police must obtain a warrant if a driver refuses access.

The amendment led Democratic Assemblyman Ozzie Fumo to ask whether the legislation was necessary because police already can get search warrants to access cellphones.

"Nothing in this bill is actually new, because the law enforcement [agency] already has the techniques and tools that we're providing," he said.

A search warrant on a cellphone can yield additional information after a fatal crash, but that practice is not uniform among law enforcement agencies, said Steven Casstevens, the police chief in Buffalo Grove, Ill., and first vice president for the International Association of Chiefs of Police.

Gorelow argued that the "textalyzer" would only show whether a person was swiping or typing.

She said phone records only provide a "sliver" of information, and not whether a person was using social media, browsing the Internet and playing games.

"It's like a Breathalyzer that only detects tequila," Gorelow said.

A Section on 03/18/2019

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