With the increasing recognition of the dangers of distracted driving, the company Cellebrite has invented a “textalyzer” which allows a download of information from a driver’s phone in an attempt to determine what functions a person was using either while driving or in the minutes preceding a stop or an accident. It can show what apps were used and when on a minute-by-minute report.
The danger with this sort of device is two-fold. The first and most pressing is the privacy interests in engages. The ability of a police officer to plug your cellular device into their “textalyzer” and be able to see what functions you have used is significant intrusion into a person’s life. In R. v. Fearon, 2014, SCC 77, the Supreme Court found that there are times where a search of a cell phone incident to arrest may be appropriate. In such a case, the arrest of the accused must be lawful. Additionally, the police must have one of three valid objectives: 1) to protect the police, accused or public, 2) to preserve evidence or 3) to discover evidence where the investigation will be significantly hampered without a prompt search. Next, the search must be tailored to the purpose of the search. Finally, detailed notes must be kept. The Court found at para. 78 that “the fact that some examination of a cell phone is truly incidental to arrest does not give the police a license to rummage around in the device at will.” The design of the “textalyzer” seems to perform specifically to rummage around in obtaining data.
In the earlier case of R. v. Vu, 2013 SCC 60, the Supreme Court had recognized that computers and cell phones are different from other receptacles to be searched. The Court stated at para. 40 that “it is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer.” The Court noted that computers and cell phones both store immense amount of data, that they often store such data automatically, they retain files even when users may think the data has been destroyed and that they serve as portals to far-ranging information about a person. Allowing police to simply plug into a person’s device and download untold data seems to be a direct violation of the rights protected in Vu.
The second concern with a device like the “textalyzer” is how accurate it is and how the data is to be interpreted. A minute-by-minute report of what apps are being used or even what app had access to the “front” or desktop of the phone can be misleading. Automated opening and interactions with apps may be unwittingly caught in such a log. Most phones upon receiving a text will engage the messaging app and bring it to front, displaying the received text message on the screen of the phone. This does not mean that the person actually engaged in any interaction with the phone. The presumption that a particular app was used means that a person was engaged in the behaviour which the law is trying to prevent, namely distracted driving, is not valid.