Alex Witt   |  June 16, 2013

NJ bill would allow police to confiscate drivers' phones

Executive Director of the New Jersey Chapter of the ACLU Udi Offer joins Mara Schiavocampo to discuss potential legislation that would allow police officers in New Jersey to confiscate a driver’s cellphone at the scene of the accident. The ACLU is against the bill because it would allow the police officer to engage in unconstitutional procedures without any probable cause.

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This content comes from Closed Captioning that was broadcast along with this program.

>>> now to new jersey. and a lawmaker's controversial plan to curb distracted driving. a republican state senator has introduced legislation that would allow police officers to confiscate a driver's cell phone at the scene of an accident to check if the driver was using it before the crash. joining me now to put all this is this in perspective is udi udi ofer, executive director of the new jersey chapter of the aclu which opposes the bill. thank you for being here today.

>> thank you for having me.

>> why are you guys opposed to this bill?

>> this bill would authorize the police to engage in unconstitutional searches of cell phones . under this bill when a police officer arrives at the scene of an accident the police officer would be able to take away your phone, to seize it, and then to search it, including your text messages , including your phone history, and to be able to do all of this without any probable cause . now, the problem is that under our constitution the police cannot do this without probable cause . that is why we oppose this bill. that is why we believe that the state legislature should reject it. and that is why we believe that if the state legislature did pass this bill it would be ultimately struck down as unconstitutional.

>> but if you look at the language of the bill, they're not -- they're taking the phone in possession for a time. they take it, they look at whatever records are there in terms of messages sent, received, phone calls , and then they return it to the user. so how is that any different from collecting any other evidence at the scene of an accident to put on the police report for later use?

>> the difference is that our constitution protects personal information . and the more personal the information, the greater the constitutional protections. and for hundreds of years we have had a standard in place in the united states , and that is probable cause to engage in an intrusive search. yet under this bill the standard would be much, much, much lower. essentially the standard would be little more than a hunch, which is not the right constitutional standard, and it would be incredibly intrusive. think about all the things you have in your cell phone . think about your text messages . think about your phone call history. that is highly personal information and that is information we need protected against government intrusion. and in fact, it was in 1928 that supreme court justice brandeis talked about the right to privacy, the right to be let alone as one of the most compresence uf of rights, as one of the rights most valued by civilized people. that is exactly the issue at stake here. that is the right to privacy. that is the right of americans to be free from government intrusion and the right of americans to be free from police looking into your cell phones without probable cause .

>> i want to take a look at some stats here. according to the "newark star-ledger" there were more than 1,800 cell phone -related crashes just in new jersey in 2011 , and acourting to outgoing transportation secretary ray lahood , 3,000 people were killed and 387,000 were injured nationally. so in the cases where cell phones , texting, making phone calls are contributing to these accidents, sure a court could subpoena those records after the fact but in many cases the phone companies don't even keep them that long. so how do you propose that the courts can move forward and prosecute people who are breaking the law and then killing and injuring their fellow citizens?

>> right. there's no question this bill is well intentioned and it's meant to address a very serious problem and that is people misusing their phones while driving. but this bill won't fix that problem and raises concerns for at least three reasons. number one, it's an after the fact bill. so this is a bill that would authorize a police officer to look at your records after you've already engaged in the crash. so it's not going to prevent people from the wrongdoing in the first place. secondly, there are much more effective ways to solve this problem. i live in new jersey. i've never seen any sort of ads or any sort of public education programs that educate me not to use my cell phone while driving. why doesn't the same center then focus on educating the public about the dangers of cell phone use while driving? and then finally is the fourth amendment and the right to privacy. this is one of the most important rights we have as american citizens.

>> we're going to have to leave it here. i could argue with you about this for a while because texting and driving is a big pet peeve of mind. but thank you for being here. i appreciate your perspective. udi