There's No Way to Enforce a Texting While Driving Ban

Radley Balko is senior editor for Reason magazine and a former policy analyst on civil liberties issues for the Cato Institute.

Forget flu season. Several times per year, America comes down with a national case of TOBAL-itis.

TOBAL is short for "There Oughtta Be a Law." Here's the progression of symptoms: Wrenching anecdotes about the effects of some alleged new trend make national news. A panic takes root in the media. Earnest editorialists scrawl urgent pleas for action. Politicians grandstand. Soon enough, we have our new law or regulation. It doesn't matter if the law is enforceable or may have unintended consequences. Nor does it matter if the law will have any actual effect on the problem it was passed to address. In fact, it doesn't even matter if the problem actually exists. The mere feeling that it exists is sufficient.

And so it goes with the panic over texting while driving. I'm not going to defend the act of clumsily thumbing out an E-mail while guiding a 2-ton, gasoline-loaded missile down the highway at 70 miles per hour. That's foolish. Nor will I argue there's some right to drive while iPhone-ing tucked into a constitutional penumbra. I will argue that we need to get over the idea that we can solve every bad habit with a new law. We can't, and this issue illustrates why.

Let's start with the alleged problem. Obviously, we have more people texting behind the wheel today than we did in, say, 1985. And undeniably, those people pose a threat. But it's hard to find definitive empirical support for the idea that our highways are awash in BlackBerry-spilled blood. Since 1995, there's been an eightfold increase in cellphone subscribers in the United States, and we've increased the number of minutes spent on cellphones by a factor of 58.

What's happened to traffic fatalities in that time? They've dropped—slightly, but they've dropped. Overall reported accidents since 1997 have dropped, too, from 6.7 million to 6 million. Proponents of a ban on cellphones say those numbers should have dropped more. "We've spent billions on air bags, antilock brakes, better steering, safer cars and roads, but the number of fatalities has remained constant," safety researcher David Strayer told the New York Times in July. "Our return on investment for those billions is zero. And that's because we're using devices in our cars."

Strayer would have a point if he were looking at the right statistics. But we drive a lot more than we did in 1995. Deaths in proportion to passenger miles are a far better indicator of road safety than overall fatalities. In 1995, there were 1.72 deaths for every 100 million miles traveled. By 2007, the figure had dropped to 1.36, a 21 percent decline. That's hardly remaining constant. But let's assume that even those numbers would be lower were it not for texting drivers. It's still far from clear that banning texting will make us safer. There are countless other driver distractions that we'd never think of banning, from having kids in the back seat, to eating or drinking while driving, to fumbling with the radio. Certainly, it's foolish to type out text messages behind the wheel, but what about merely reading from your phone?

Are you more impaired following MapQuest directions from your Palm Pre while driving than reading them from a sheet of paper? What if you're looking at a GPS navigation device that's only slightly larger than your cellphone? What if the GPS system is on your cellphone?

That brings us to the enforceability problem. Maryland just passed a texting ban, but state officials are flummoxed over how to enforce it. The law bans texting while driving but allows for reading texts, for precisely the reasons just mentioned. But how can a police officer positioned at the side of a highway tell if the driver of the car that just flew by was actually pushing buttons on his cellphone and not merely reading the display screen? Unless a motorist is blatantly typing away at eye level, a car would need to be moving slowly enough for an officer to see inside, focus on the phone, and observe the driver manipulating the buttons. Which is to say the car would probably need to be stopped—at which point it ceases to be a safety hazard.

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