The Textalyzer: New Technology Gives Police Access to Private Phone History

The Textalyzer is a new tech item that gives police access to a person’s phone history after an accident, but does it also sanction law enforcement to invade someone’s privacy?

The Textalyzer

Photo by: xersti

The state of New York, along with multiple other locations across the country, is eager for their police department to begin using a new gadget known as the Textalyzer. If it makes it through the New York State Senate, Utah won’t be far behind. The term “Textalyzer” is a spin-off of the breathalyzer except instead of detecting alcohol use, it would detect whether or not a phone was being used prior to a collision. The Textalyzer is a handheld device which officers can connect directly to a person’s phone at the scene of an accident and in less than two minutes, detect if there was any phone activity in the moments leading up to impact.

Flawless technology…

The Textalyzer device is allegedly meant to only detect if there is activity on a phone but there are a few possible flaws:

• Will it truly be able to distinguish if a person was actively looking and using their phone or if there unattended phone was merely receiving calls or texts?

• What if there is activity on the phone, but it was being used hands-free which is legal?

• Does the Textalyzer know whether or not a passenger was using the phone and not the actual driver?

In order to help prevent some of these flaws, simply detecting any activity on the phone won’t be enough. To help reduce flaws with the Textalyzer, it may need more access to a person’s private cell phone history in order to protect that person from being falsely accused of cell phone use while driving.

“Private” cell phones

Textalyzer

Photo by: Lord Jim

Some reports state the Textalyzer could tell what apps were used prior to a collision and if the driver was sending content or just receiving it. This means if someone receives a message on Tinder or another private social media app or sends one themselves it could end up publicly documented in a police report. Even then, there is no way to tell who was using the phone in the car unless of course the driver was alone. To really know for sure when two or more persons were in the car, the content of messages such as a picture taken by a passenger or a reply to a text made by a passenger in behalf of the driver might have to be evaluated to tell who was actually using the phone. In order to not be falsely accused of texting or Facebooking while driving, a large amount of the driver’s private phone history would have to be disclosed and likely documented in a report.

Illegal search and seizure

The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Textalyzer would give law enforcement the right to search a person’s private property: their cell phone. It would also give police the right to illegally seize information found on the phone that belongs solely to the owner.

Convenience doesn’t take priority over Constitutional Rights

Photo by: Bill Selak

The Textalyzer may be a simple, easy-to-use device, but realistically it is nothing more than a convenient back door approach for law enforcement to get around going through the proper channels meant to protect a person’s Fourth Amendment rights. If the wool is removed and the Textalyzer is seen as the invader of privacy that it is, officers would have to return to legally obtaining a warrant to search the records of a phone. This may be a longer process than the Textalyzer, but the extra time is worth it to ensure no one’s Constitutional rights are violated.

Excessive Bail Clause Doesn’t Help Low Income Residents

The excessive bail clause of the Eighth Amendment doesn’t help low income residents who are unable to pay their bail amounts.

Eighth Amendment, Excessive Bail Clause

Bail

Photo by: Daniel Oines

The Eighth Amendment to the Constitution of the United States declares” Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In an attempt to ensure that everyone is treated equal, the Eighth Amendment protects citizens from being punished unfairly by either monetary means or through physical harm.

Utah bail schedule

The Utah bail schedule defines its purpose as to “provide assistance to the sentencing judge in determining the appropriate fine or bail to be assessed in a particular case ( . . . ).” In a sort of bail algorithm, the Utah bail schedule computes information such as the current charges, criminal history, and whether or not the defendant has a failure to appear to help determine what fine or bail amount to impose. While this may seem a fair way to ensure excessive bail is not being issued, it does not take into account personal situations or monetary status of the defendant.

Bail fits the crime, not the person

Photo by: 401(k) 2012

The excessive bail clause safeguards that no one is given a bail amount higher than necessary, but does not take into account whether or not the individual is able to afford the bail amounts. An individual making six figures a year is more likely to get out on bail versus another charged with the same crime who is making minimum wage.

The poor trap

Even if not deemed excessive bail from a legal standpoint, one bail amount may seem excessive to a person living on meager wages while another with deep pockets seeing the bail amount as mere pocket change. This can end with an uneven balance of rich vs poor behind bars, not because the charges of the penniless are worse, but simply because they do not have the cash on hand to “buy their way out of jail”.

Low income, high crime

Photo by: Roland Tanglao

The longer the poverty-stricken individuals sit in jail, regardless of whether or not they are ever convicted of a crime, the more likely they are to lose their homes, jobs, and even custody of their children; all factors that have the potential to increase the likelihood of criminal activity once the impoverished individuals are released from prison. The Excessive Bail Clause may protect the middle or upper class, but it is may actually be cruel and unusual punishment for the poor.

Fourth Amendment Allows Hotels to Keep Registries Private from Police

Hotels are normally strict about keeping registries private when inquiries are made from common citizens; however when police are involved, guest information is often searched freely with or without a warrant.

Hotel registries

Photo by: Alan Light

As travel season hits its peak for summer vacation, many Utah residents will book lodging away from home. As travelers check in to their overnight establishments, there are several items of information that will be requested and stored by the hotel. A driver’s license with a home address and a credit card to pay for the room are typical items required before a hotel will allow a patron to check in. In addition to the name and address on the license, hotel clerks will generally ask for a phone number, email, and number of guests staying at the hotel as well as the make, model, and license plate number of the vehicle being driven by the hotel guest. This information is then recorded for a period of time on a hotel registry.

Fourth Amendment rights of hotel owners

Prior to June 2015, information collected on registries about patrons would legally have to be handed over at the request of a police officer. Failure to do so could result in criminal charges for the hotel staff or owners. In The City of Los Angeles V Patel, the Supreme Court ruled that forcing a hotel to provide police access to their registries conflicted with the Fourth Amendment rights of the hotel owners. They determined that the owners of a hotel have a constitutional right against unreasonable searches of their patron registries and that the information contained therein should only be released to law enforcement after a signed warrant is presented or if the owner decides to offer the information freely to police.

Privacy or not – hotel has the choice

Photo by: Bob Shepard

The information collected by a hotel belongs to the hotel only and not to the guests for which the information is about. If a hotel owner chooses to share their patron registries with police- that is ultimately their call. The popular lodging chain Motel 6 has chosen the provide law enforcement with their patron registries on a daily basis in order to help limit crime being committed on their property. It is unknown what other hotels have similar freedom of information with police. As privacy may be a sensitive an issue for many individuals, especially those wishing to keep record of their overnights discreet, it may be wise to speak with a hotel about their policies concerning patron registries before booking a room with them.