In 2011, 19-year-old college freshman Evan Lieberman was killed while he was riding in the backseat of a car when the vehicle was struck by a driver who told police he’d fallen asleep. Subsequent phone records obtained following a civil lawsuit by Evan's father, Ben Lieberman, however, showed much activity on the offending driver’s phone in the moments before the crash — activity that indicated he was likely texting while driving.

After the tragic accident, Ben Lieberman began working to spread awareness of the dangers of texting while driving, and has since become a leading activist on the matter, fighting to improve societal efforts to reduce behavior similar to that which killed his son. When he speaks to groups about distracted driving, he tells them there were roughly 250,000 car crashes in the state of New York in 2014. He asks his audience to guess how many had to do with texting while driving.

The numbers come at him. 80,000! 125,000! Half!

No, Lieberman tells them, the actual number is 64. Not 64,000, or 64 percent. Just 64, which is less than 1 percent. Lieberman explains that the reason the number is so low — much lower, in fact, than any reasonable human being is likely to guess — is because there is no protocol in place for law enforcement officers to determine whether someone was on his or her phone while driving, short of asking them point blank and receiving a confession. Phone records are difficult to obtain, and they only show calls or texts, not activity on the Internet, with email, or on apps like Facebook or Twitter. Meanwhile, all 50 states have passed laws that allow for enforcing drunk driving violations based on implied consent.

“That’s why this is developing into a nameless and faceless crime,” Lieberman said during an April 13 conference call in which politicians, activists and technologists discussed this issue, the law and the capabilities of a new technology that could help law enforcement at the scene of an accident. “It’s creating a huge void in any negative social stigma for the people causing damage and for implementing other deterrents. We need to get to the same place where DUI is.” 

The problem with taking a similar tack to combat and stigmatize distracted driving is that there are few state laws that lay out a protocol for establishing whether a driver was on his or her phone, and the only logistical means of determining it is through a witness or a confession.

This, however, may be poised to change.

Enter the Textalyzer, a technology currently in the prototype and proof of concept stages that would allow officers at the scene of a car accident to tell if a driver had been texting behind the wheel within 90 seconds of it interfacing with a personal device.  

Logistical details about the methodology of the Textalyzer, which is being developed by digital forensics specialist company Cellebrite, have not yet been released, and the company’s CEO has said it would take between six and nine months to get the tech to market. Before Cellebrite can move forward, however, the New York State Legislature must pass a bill that would enable authorities to use such technology to enforce distracted driving offenses.

Currently the bipartisan bill, which was introduced in 2016 and is now known as Evan’s Law, after Evan Lieberman, is making its way through the legislative process in New York, in both the Senate and the Assembly.

New York Senate Bill S2306, sponsored by Terrence Murphy, R-Westchester, recently moved from the Senate's transportation committee and into its finance committee. New York State Assembly Bill A3955, sponsored by Assistant Assembly Speaker Rep. Felix Ortiz, D-Kings, is currently in the Assembly's transportation committee.

Both bills contain language that calls for amending the state’s traffic laws to allow for the field testing of phones and other devices — tests that would only be allowed after an accident involving personal injury or property damage.

During the conference call, Cellebrite CEO Jim Grady said his company now has a working prototype that can secure information about whether texting happened in 90 seconds, without a device leaving the offending driver’s possession.

The stakeholders on the call stressed that the law enabling use of innovations like the Textalyzer would enable police to only access actions that had taken place on a phone immediately before a crash, not the content on the device. In other words, officers could use it to learn that a driver had used his or her hands to send a text or read an email, but they could not see what that text or email said.

“The key for us is to protect the driver’s privacy while determining if the phone was in use at the time of the accident,” Grady said.

While the laws under consideration have received bipartisan support — always an encouraging sign — advocates for reducing distracted driving say that a key to passing it, and thus stemming the growing problem, is awareness. They drew a comparison to drunk driving, a crime for which there is a powerful stigma and widespread knowledge of the legal consequences, to say nothing of its aggressive enforcement.

They also presented information that showed a decrease in drunken driving but a spike in car crashes on New York state roads in 2016, which they attributed to the growing epidemic of driving while distracted by a smart device.