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Busted by a 'Textalyzer'?

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By Peter Clarke, JD on May 02, 2017 7:00 AM

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

Let's face it -- many of us are addicted to our tech gadgets. We constantly have to check our smart phones for all sorts of communications and updates. Of course, this can be problematical, especially when we might want to reach for our handheld devices while driving our cars. Indeed, texting while driving can be rather dangerous; it is difficult to focus on your driving while looking down into your phone to text.

But if you manage to text while driving without causing an accident, are you out of the woods? Not necessarily. And what if you are involved in an accident? Well, you may be busted by a "textalyzer."

So, what Is a Textalyzer?

A textalyzer reportedly is modeled after the Breathalyzer and is to be used to ascertain whether a person has been using a phone illegally while driving. And according to NPR, legislators in New York and a few other states and cities are weighing whether to implement the device to "crack into phones" because far too many people are texting while driving and causing many accidents as a consequence.

Without a textalyzer, it can take months to obtain phone records through the legal process to pinpoint when and how a particular phone was being used at the same time as a person was driving and may have caused an accident.

Enter the textalyzer, developed by a company called Celebrate, as a potential solution. This is how the textalyzer is used: a police officer simply approaches the driver of a vehicle, the officer connects the textalyzer to the driver's phone, and with the tap of one button in about 90 seconds the textalyzer will show that last activities on the phone with time stamps. Thus, in theory, the textalyzer could show right away whether someone was texting on a phone while driving and possibly causing an accident.

Apparently, the textalzyer is not yet ready for prime time, and efforts will be made to tailor the textalyzer to applicable driving laws in different jurisdictions. Importantly from a privacy standpoint, the textalyzer should not download the actual content of communications; instead, it will show which apps and functions were in use at specific points in time. And it should detect if the hands-free function was in use, which may satisfy certain legal requirements.

So, stay tuned to find out if textalyzers will be coming to law enforcement near you. But rather than wait to adjust your driving habits -- please do not text or use your smartphone in an unlawful matter.

Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

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