Jake's law [Editorial]

Our view: New tools to police distracted driving need not violate privacy

March 03, 2014

If you're in an accident in which someone is injured or killed and police suspect you've been drinking, you're certain to be asked to take a Breathalyzer test or perform a field sobriety check. But if under similar circumstances authorities believe the accident was due to distracted driving while you were talking or texting on a cellphone, they have limited means to confirm their suspicions.

That's why some lawmakers are calling for police to be given greater power to compel suspected distracted drivers to disclose cellphone numbers and other basic information about devices that may have played a role in an accident. Baltimore City Del. Luke Clippinger has introduced legislation that would allow police to collect such information in investigations of accidents involving death or serious injury. But civil liberties groups argue that his bill would give police more power to rummage through people's personal cellphone calls and texts, presenting an unwarranted intrusion on citizens' privacy rights.

Mr. Clippinger's proposal would require distracted driving suspects involved in serious accidents to give authorities their cellphone numbers, service providers and any email accounts associated with their phones if an officer has "reasonable grounds" to believe the phone contributed to the accident — the same standard police use to request a Breathalyzer test. Mr. Clippinger insists the disclosure requirement is actually less intrusive than the standard in drunk driving cases and that it would save lives by deterring distracted driving at a time when cellphone use is increasingly being linked to fatal car accidents.

The ACLU of Maryland submitted testimony opposing the bill out of concern that it could allow officers to troll through a person's calls and texts looking for evidence of crimes that have nothing to do with the accident they're supposed to be investigating. The ACLU notes that the Supreme Court is already considering two cases related to the extent to which police officers may search a phone subsequent to arrest and suggests that the proposed legislation may well violate the Fourth Amendment's protections against search and seizure.

While we certainly agree that a traffic stop, even one subsequent to an accident involving severe injury or death, should not give the police carte blanche to page through the vast amount of personal information stored on our cell phones, we believe the ACLU's concern about this particular legislation is misplaced. The bill does not call for motorists to hand over their phones to officers but merely to provide the information authorities would need to check with wireless carriers and email service providers to determine whether the suspect was, in fact, texting at the time of the accident. That is all the information prosecutors need, and if the bill does not already make sufficiently clear what the limits are on the information police would be able to access, it should be amended to do so. (A Senate version of the bill would allow officers to "inspect" the phones, which is unnecessary and should not be enacted.)

Mr. Clippinger was inspired to take up this legislation by the story of 5-year-old Jake Owen of South Baltimore, who was killed in an auto accident in 2011. Baltimore County prosecutors believed the driver of the other car, Devin Xavier McKeiver of West Baltimore, was driving while distracted, and they were able to prove that he was on the phone at the time of the accident, but the judge did not agree that his actions amounted to criminally negligent manslaughter. Mr. Clippinger's bill creates a new offense that likely would have applied in that situation: distracted driving that results in a death or serious injury would be a misdemeanor punishable by up to 3 years in prison and a fine of up to $5,000.

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