Guest Post by 2050 student Catherine Moreton

Tech company ComSonics announced in September that it is developing a new type of radar gun that detects not speeding, but texting. ComSonics specializes in handheld radar devices used mostly by cable companies searching for emission leaks in broken wires. But at the second annual Virginia Distracted Driving Summit, ComSonics revealed that the same technology is being adapted to track radio frequencies emitted when a driver sends a text message. According to spokesperson Malcolm McIntyre, the device can distinguish between frequencies emitted by text messages and those emitted by phone calls or emails.

In a year that included the National Highway Traffic Safety Administration (“NHTSA”) launching its first-ever national advertising campaign against distracted driving and AT&T’s “It can wait” campaign going viral, overdue public awareness of the dangers of texting and driving has increased dramatically. This is wonderful news for road safety and the 44 states (plus D.C.) that have banned texting while driving. But at what cost should we allow police officers to enforce those statutes more directly?

While McIntyre says the radar gun is “close to production,” technological concerns range from how to pinpoint whether the driver or a passenger was the one texting to what to do about automatic response messages. The technology is also currently limited to SMS messages and cannot yet detect texts sent over Wi-fi between iOS devices. Absent a safe harbor, the government might eliminate this boost for smartphone owners using the Communications Assistance for Law Enforcement Act (“CALEA”) to require providers to enable detection.

Once those kinks are worked out, privacy law will take center stage. McIntyre insists that the technology cannot decrypt the content of the messages, and under conventional Smith v. Maryland wisdom, this distinction would limit the government’s Fourth Amendment liability. But in a 2012 concurrence, Justice Sotomayor began to poke holes in the applicability of Smith to cell phone cases, calling the third-party doctrine “ill suited to the digital age.”

Plus, even though a cell phone user never reasonably expects her metadata to be private, the best evidence that a driver was texting is the time-stamped text itself. And if police want a driver to hand over her phone and incidentally reveal its contents, two June 2014 Supreme Court rulings suggest they’re going to need a warrant.

This summer, Riley v. California and companion case United States v. Wurie made huge advances for individual data privacy rights regarding cell phones, requiring a warrant for police to search essentially any kind of cell phone. With those opinions, the Supreme Court granted digital devices full Fourth Amendment protection absent exigent circumstances.

It is yet to be seen how Riley will affect other privacy arguments that could challenge the radar guns. Kyllo v. United States (while distinguishable in that it had to do with a home, which carries the strongest expectation of privacy) could require a warrant until the radar guns are “in general public use.” Independently of Fourth Amendment causes of action, the Stored Communications Act (“SCA”) could provide a remedy for phones searched without a warrant, and the Pen Register Act could require a court order before the radar guns may be used at all.

The good news is that the Court, after some resistance, seems ready to embrace the challenges of the digital age by beginning to agree with Justice Scalia’s 2010 view that “applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice.”