Press "Enter" to skip to content

SB 71: Ban Texting While Driving, and Hand Cops Your Facebook Account?

Senate Bill 71, which would ban texting while driving, passed the South Dakota Senate Thursday, 26&ndash9. I noticed that Senator Angie Buhl (D-15/Sioux Falls) was in the Nay column alongside Senator Russell Olson (R-8/Wentworth).

How could the great liberal hope of South Dakota (and I say that with true admiration) align with the ill-informed Senate Majority Leader on this public safety issue? Voting with Russ usually signals a momentary lapse of judgment. But ferom the sounds of committee discussion and floor debate, Senator Buhl appears to harbor some serious concerns about how a texting ban could violate your privacy on the highway.

A conservative much more consistent than Senator Olson lays out the privacy problem opponents see with this pending texting-while-driving ban. Citing recent court cases allowing police to conduct warrantless searches of mobile phones, Michael Woodring wonders how far SB 71 might expand police search powers:

After reading the article, I continue to wonder at the burden which this law (leaving aside any perceived benefit) may prove for law enforcement. Will an officer be permitted to forcibly secure the driver's phone to determine if it has been impermissibly used or not? If the phone is encrypted, will the officer request the passcode? In the event that the driver is not forthcoming with the passcode, will the officer be permitted to detain the individual for failure to comply? [Michael Woodring, "Understanding the Ramifications of Senate Bill 71," Constant Conservative, 2011.02.12]

Such concerns do raise my alarms, especially when I consider how easily such rulings might extend from cell phones to any electronic communication device on my person when I travel. I regularly have my computer in my possession when I drive or bike our Lake County thoroughfares. How would I respond if a local cop pulled me over and asked me to hand him my computer? Rumor has it my blog enjoys some popularity among local law enforcement, but I'm still not inclined to hand over to our men in blue or brown access to my blog, my dissertation, my Facebook page, and other private writing short of a court order.

My respect for Senator Buhl and Mr. Woodring notwithstanding, I'm not sure privacy concerns can get me to vote against SB 71. First, to the extent that I have any privacy on our public roads, I would consider a police search of my cell phone (if I had one) or my computer not quite so intrusive on my privacy as some teen idiot running me over while he checks for updates from his Facebook friends.

Then again, while texting 23-tuples your risk of getting in an accident, texting bans don't appear to make people safer. It just drives them to more surreptitious texting that takes their eyes even farther from the road. So perhaps the potential for police privacy abuses are not outweighed by any gains in bodily privacy.

However, the warrantless search problem appears to exist independently of texting bans. The court cases to which Mr. Woodring refers already grant police warrantless search power over mobile phones incident to arrest. I take these rulings negate our Fourth Amendment rights in any traffic violation situation. So my data is already at risk any time I take my computer on the road. Yikes!

To prevent such privacy intrusions, do we repeal open-container laws or reckless driving laws or any other laws that provide police pretext to stop and cite us? We should still prohibit and punish dangerous driver behavior. We should address privacy concerns by enacting separate legislation that explicitly prohibits police fishing trips in our private data.

Along those lines, perhaps our Legislature should consider laws to declare the Patriot Act unconstitutional, null, and void and criminalize enforcement of its warrantless searches.

But remember, however the House votes, there's an easy way to avoid searches and wrecks: put down the phone and drive.


  1. mike 2011.02.13

    Agree or disagree this is hands down the best blog I've been reading for SD politics.

    As a conservative I think that it is essential that texting be banned. I do not believe just saying "don't do it" is strong enough language for teens.

    [Editor: My humble thanks, Mike. Your agreement is a welcome treat; your disagreement, a welcome challenge. Keep 'em coming! —CAH]

  2. Brett Kearin 2011.02.13

    The easiest way to avoid a search is put down the phone and drive? The warrantless search doesn't stop this. If the law enforcement officer thinks I was using my phone to text or email, he or she gets to search. There is no proof that they must show other than what the officer thinks they saw while traveling down the road at 55, 65, or 75 mph.

    I do have serious concerns with this bill. Any internal email or text message that hits my inbox is company confidential information. My corporate phone has access to all this information. For this reason, I am required to enter a passcode on my phone to gain access to it - and I'm not about to provide that code and access to company confidential information without a valid warrant.

    And what about someone like yourself, Cory, that doesn't carry a cell phone. What if you get pulled over after you turn down the volume on your Bug's radio and the officer asks to see your cell phone. You insist you don't have a cell phone, but the officer doesn't believe you. Does he have the right to search you and your car to find a cell phone?

  3. Michael Black 2011.02.13

    I have taken the stand that there will be no texting in my household. All enhanced services are blocked. I insisted on it when we purchased the phones. When my kids turn 18, drive their own cars and pay for their own cell phone plans, then and only then will they get the opportunity to text on a cell phone.

  4. caheidelberger Post author | 2011.02.14

    Hear hear, Michael!

    Brett, the prospect of such searches does trouble me. But the propensity for Fourth Amendment abuse is already there without SB 71. Bad cops can abuse existing statutes and bully you in a traffic stop to look through things they shouldn't, and the only check we have is knowing our rights and being ready to go to court to assert them.

    My comment about avoiding searches by not touching your phone while driving only protects you in the 99% of cases where you are dealing with decent cops. If they don't see you staring distractedly at your phone instead of the road, they don't have cause to pull you over and push for any such search, just like if they don't see you whiz by tipping a bottle to your mouth, they're much less likely to pull you over for open container.

  5. Danielle 2011.02.19

    I, personally, disagree with the law. Although I do think texting while driving is bad and people shouldn't do it, I also think that this law is basically a small percentage of irresponsible people ruined it for everyone. I, and most of the people I know, only text while sitting at a stop light or while stuck in traffic which is still considered driving. There's also a ton of other things that cause attention to drift to other places than the road, like changing the song on a radio or ipod, paying attention to a gps, kids, other people in general, etc. You can't tell me that they're going to ban all of those as well... I also agree with Brett...

  6. caheidelberger Post author | 2011.02.20

    I hear your concerns, Danielle, about enforcement. But when behavior is this dangerous, we need to put some serious legal consequences on it, just like drunk driving. Among other things, a stiff legal penalty helps change the public perception of distracted driving. Driving drunk used to be no big deal, either: people could admit they do it as casually as you do above. Now to say, "Oh, I only drink alcohol behind the wheel when I'm waiting at a traffic light" would be unlikely, thanks to the shift in public attitude. We need to shift that attitude so people feel ashamed of texting while driving.

    By the way, Danielle, remind those folks you know that even at the stop sign, you need to have your eyes on the road, watching for the light to change, kids crossing, big trucks making wide turns. If you're alone in the car, before you turn the key, that phone needs to be off and stowed.

Comments are closed.