A New Jersey state senator is looking to bring the government-based acquisition of personal information to a literal street level. New Jersey State Sen. James Holzapfel (R-Ocean County) proposed bill S2783, which would grant police officers the ability to confiscate cell phones, primarily after car accidents, to determine whether the wreck was caused by phone use while driving.
On the surface, the bill seems to be a valid bill with citizen safety at the forefront. However, the provisions of the bill allow unconstitutional access of personal information. The lead provision reads as follows:
Whenever an operator of a motor vehicle has been involved in an accident . . . a police officer who reports to the scene of the accident may confiscate the operator’s hand-held wireless telephone, . . . if the officer has reasonable grounds to believe that the operator involved . . . was operating a hand-held wireless telephone.
How will a cop define “reasonable grounds” to believe a driver used a cell phone during a car crash? In terms of driving under the influence of alcohol, intoxication is its own probable cause because of the users disoriented actions, alcohol has an odor, and physically visible evidence that may be present like empty cans or bottles. Probable cause for cell phone use is hard to determine. Speculatively, an accident presumably caused by cell phone use could just as easily have been caused by mere inattentiveness.
The next, and most important question, is the constitutionality of the bill. In plain view, the bill is an intrusion of personal privacy and information, as property is seized and information is examined without a warrant, indirectly. In this case, because the goal isn’t to surveill and search for incriminating transfers of information, the window is indeed open wide enough to cause concern. “The legislature cannot authorize searches unless there is probable cause,” said Alexander Shalom of the New Jersey bureau of the ACLU. “The bill is likely susceptible to a constitutional challenge.”
The passage of this bill into New Jersey state law would likely do little to deter drivers from using their phones while driving. In all reason, what good would the law do anyway? Law enforcement already has a working way of determining fault in car accidents.
Joshua de Leon is a writer and researcher with Ring of Fire.