The American Civil Liberties Union’s position is that proposed textalyzer technology by Cellebrite, which it describes as vaporware, constitutes a highly intrusive personal search, according to Jay Stanley, senior policy analyst for the ACLU Speech, Privacy and Technology Project. Such a search requires a warrant based on probable cause, and proposed textalyzer law like that of New York state’s, flies in the face of a previous Supreme Court ruling requiring police to get a warrant to search a phone, even when a suspect has been arrested.
There’s an unusual constitutional chicken-and-egg problem here: the legislation is premised on the availability of technology that will do certain things in certain guaranteed ways, but that technology won’t be available for anyone to look at until the passage of legislation authorizing its use,” wrote Stanley.
If the bill proposed (such as the New York Senate’s version) were to become law, police in New York state could search a phone under the premise of implied consent — similar to the breathalyzer. Refusal to hand over the cell phone could result in the police suspending a driver’s license.
Textalyzer Law Fails to Consider Automation
Stanley said that due to the open questions below, and two facts — that as technology evolves, the lines between manual, semi-autonomous and fully automated responses are likely to blur, and that the proposed laws “implied consent” will not pass Constitutional muster — textalyzer as a police tool needs to be subject to the warrant framework protected by the Constitution.
Blood tests, for example cannot be required without a warrant, also the result of Supreme Court decision.
ACLU outlined the following unanswered questions that would need to be answered to effect textalyzer law:
- How would textalyzer software reliably identify those phones that were in use in ways that were actually dangerous and illegal? For example, how would they distinguish between texts manually entered by a driver and texts using other means such as hands-free speech-to-text?
- Does the Constitution permit the police to search a phone using a textalyzer without a warrant under the Fourth Amendment?
- If multiple people were in the car during an accident, how would a textalyzer establish that it was the driver operating a phone around the time of a crash and not a passenger?
- For that matter, how will the police even verify whether a phone they want to search belongs to the driver and not a passenger, or is not a spare phone?
- How could the public be certain that a textalyzer is not invading privacy in the way it accesses data?
- How could the public be certain that a textalyzer is not a security threat—that it does not contain either software from the manufacturer that goes beyond the scope the legislation allows, or third-party malicious code the police are not even aware of?
- If drivers are required to give a police officer possession of their phone so that a textalyzer analysis can be applied, how can they be sure that the officer won’t look at data on their phone?
- What happens if a driver refuses to unlock their phone for a police officer?
As the proposed legislation stands now, “the fact that textalyzers will supposedly look only at metadata rather than the content of communications should not be taken to mean they will not invade privacy,” concluded Stanley.