Enforcement, Privacy, and Constitutional Problems with Virginia’s New Texting-While-Driving Law

Virginia’s new texting-while-driving law is not only unenforceable, as a recent article in the Washington Post notes, but raises privacy and constitutional concerns as well. The new law retains the existing language in Va. Code Ann § 46.2-1078.1, which prohibits entering multiple letters or text into a cellphone “as a means of communicating with another person” and readings texts or emails transmitted to or stored on your cellphone. This language leaves police officers, while traveling at 65 mph, to determine whether a driver is using his cellphone to send a text or call his wife.

Enforcement problems. As the traffic division commander for the Fairfax police said in the WaPo article, police officers would have a very difficult time determining whether a person was texting or typing the name of a restaurant into Google Maps. Also, drivers could just lie about what they were doing on their phone if they are pulled over, as suggested by a recent blog postNews reports, however, report that police officers will give people the option to present their cellphone to prove that they have not been texting or emailing or to fight the ticket in court. But someone could easily write an app that displays fake text messages with fake timestamps. Ideally, such an app would look just like the native text message/email app and contain copies of the actual texts and email on the phone, but have timestamps that subtracted an hour from the real timestamps.

Privacy concerns. Despite the reassurance that police officers would give a driver the option to submit to a search of the cellphone for evidence of a recent text or refuse the search and fight the ticket in court, Professor Gershowitz of William & Mary explains in a recent article that police officers have constitutional grounds to search cellphones for evidence of texting under all of the different state texting-while-driving laws. Specifically, Professor Gershowitz posits that such searches are permissible under two different exceptions to the Fourth Amendment’s protection against unreasonable search and seizure, the search-incident-to-seizure exception and the automobile exception. The search-incident-to-seizure exception would not apply to the revised Virginia law because the statute does not give a police officer the authority to arrest a suspect. Under the automobile exception, however, Professor Gershowitz says that police officers would have authority to search cellphones in a traffic stop for texting-while-driving even without the authority to arrest. Specifically, the professor reasons that police officers would have authority to search cellphone “containers” in such a traffic stop because the officer personally observed the driver texting. This personal observation give the officer sufficient probable cause for both the traffic stop and the search of the cellphone “container” under existing Fourth Amendment jurisprudence, even if the officer mistook the use of Google Maps for texting or emailing. Therefore, under the automobile exception to the Fourth Amendment, a police officer may legally decide to search a driver’s cellphone even if the driver refuses to consent to the search when the driver is pulled over for allegedly texting-while-driving—even if the driver was just searching for an address on Google Maps.

Constitutional problems. In this article, however, Professor Gershowitz says that, while the automobile exception clearly allows cellphone searches during stops for texting-while-driving, it is not clear where in the cellphone, or what apps on the phone, the police officer may search. That is to say, it is not clear whether the police officer’s authority to search is limited to only an app used primarily for texting or email, or if the officer has the authority to search any app that could possibly be used for communication such as a Facebook app or a web browser. This would be a concern as well for those that submit to the officer’s request to search the cellphone, assuming the officer will only check for texts and emails, and finding out that the officer searched through their web browsing history.

Professor Gershowitz explains that the where authority is likely controlled by the language of the statute. The language of Va. Code Ann § 46.2-1078.1, recall, prohibits in part entering text into a cellphone to communicate with another. Therefore, police officers would certainly be able to review texting and email apps, as those are primarily direct communication apps, but what about your Facebook app? Is a Facebook post a “means of communicating with another person” under the meaning of the statute? Most people do not expect direct replies from their Facebook updates, like you would a direct text, but people certainly intend to communicate to others through a Facebook post. If officers have authority to search beyond email and texting apps, could they have the authority to search your cellphone’s web browser as well? Many people choose to use a web browser over a specialized app for accessing Facebook because of privacy concerns. Additionally, if the police officer has the authority to search for Facebook posts, certainly they have the authority to search for postings to message boards or blogs that were posted through the web browser. What about a Reddit app?

The legislature should revise the texting-while-driving law sooner than later to avoid the cost of enforcement, privacy violations, and constitutional problems of the pending version of Va. Code Ann § 46.2-1078.1. I would support a blanket ban on the use of hand-held cellphones, which was Maryland’s recent solution to the problems discussed above. However, criminalizing the use of hand-held devices likely disproportionately affects those who cannot afford a car with an integrated hands-free device. But I believe that a blanket ban on the use of cellphones in the car would be an overreaction to the problem as well.

Thoughts?

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