Warnings about texting while driving are everywhere. We see billboards along highways telling drivers to refrain from using their phones. We see television commercials and news stories reporting fatal accidents that have occurred as a result of a driver texting. State legislatures have recognized the dangers of texting while driving, and have responded by enacting laws to ban such conduct. Currently, forty-four states, including North Carolina, have bans against texting while driving. In North Carolina, the law is a primary law, meaning an officer can ticket a driver for texting even if the driver is not committing any other driving offenses, such as speeding. Despite these warnings, sixty percent of drivers use their cell phone while driving.
A lack of ability to enforce bans on texting while driving may be a reason that these laws are not as effective as they could be. Unlike traffic hazards such as running a red light, texting may not be visible to law enforcement. Rather, it can be done discreetly. Some individuals who frequently text may not even have to look down at their phones. Additionally, when individuals notice police cars around them, they can put their phones down until the police pass, and then pick their phones up again. However, ComSonics, a Virginia based company, may have found the solution to detecting drivers who are texting. ComSonics has recently announced that they are developing a radar gun that can help law enforcement detect when drivers are texting by monitoring, scanning, and identifying the radio signals associated with cell phone use. The gun specifically detects only the types of signals that are emitted when a text is sent, as opposed to signals that are transmitted when a call is made or when data is transferred.
As with other technologies that have the potential to give law enforcement information about a citizen’s activities without the citizen’s knowledge, there may be Fourth Amendment concerns about privacy. The Supreme Court has already declared that law enforcement must have a warrant to search the contents of a suspect’s cell phone. If the radar is able to read text messages, the device, if used without a warrant, would be in violation of a driver’s constitutional right to privacy. However, Malcolm McIntyre, a manager at ComSonics, has assured the public that the device cannot detect the contents of a text. It is strictly limited to detecting transmission signals.
Even if the radars are not able to read text messages, there are many other legal concerns with using a radar system such as the one currently developing. Allowing law enforcement to use radars that detect texting while driving could lead to many unnecessary stops. As the radars currently stand, it is unclear whether it can differentiate between when a driver is sending a text message and when a passenger is sending a text message. Both messages emit the same text message signal. This will leave many more citizens vulnerable to many more stops when travelling with passengers. Additionally, if law enforcement has to stop each and every car from which a signal is emanating to investigate whether the driver or the passengers were texting, the use of these radars could be time consuming and inefficient.
Law enforcement could also abuse the radar to stop only specific cars or certain types of drivers. Like the issues of profiling that have been raised in regards to Terry stops, radars that detect texting could be a device that law enforcement utilizes in a racially discriminatory manner. For instance, an officer may choose to sit in a neighborhood with a large population of minorities and use a radar to detect whether drivers in the area are texting.
If an officer’s radar shows texting signals emanating from a vehicle, the officer could stop the vehicle, issue a citation, and hope that he or she might also be able to see evidence of a crime in plain view.
Texting while driving is a dangerous act that has potentially fatal consequences. Bans should undoubtedly be enforced. However, if law enforcement were permitted to use radar detection to effectuate statutes prohibiting texting while driving, the radars should be better attuned to detect only when drivers are texting, and law enforcement should be monitored to ensure they are not abusing the discretion that comes with using radars.