The recent NTSB recommendation to ban the use of all cell phones (specifically, portable electronic devices (“PEDs”)) while driving has not been well-received in many quarters. Even people generally comfortable with government regulation have bristled at this recommendation, and there may be good reasons why. It’s not to say that distracted driving is acceptable: it can be, as even critics of the ban acknowledge, extremely dangerous, and thus to the extent that distracted driving constitutes reckless driving, it’s justly criminalized, as it generally already has been.
But this recommendation proposes criminalizing the use of technology more broadly, and in doing so, raises significant policy concerns.
For one thing, that broad prohibition is itself troublesome. The proposal is to “to ban the nonemergency use of portable electronic devices,” with the exception of those “designed to support the driving task.” But as anyone with GPS and a mapping app on their phone knows, these functions are already not necessarily provided by separate devices with discrete functions, and as hand-held technologies continue to evolve, we can likely to expect even more functional convergence on the same device. How could a ban on handheld technologies possibly work if the same device could either be permitted or forbidden? It would be impossible to enforce, at least not equitably.
Secondly, and in some respects more worryingly, is that criminalization is a costly way to shape behavior, especially in a situation, such as this, where it would make nearly everyone a criminal. Society seems prepared to see distracted driving as wrong, but it does not seem equally prepared to declare that any and all use of a handheld device by a driver is equally wrong. Too many people use them, and the law would make no distinction as to whether they do so safely or not. In fact, one of the consequences to making all use illegal is that it would create incentives for people to do even more unsafe things in order to avoid getting caught for it, thus leading to a result diametrically opposed to the underlying public safety premise of the ban.
The enforcement itself also has costs. Not just because it takes resources to police these sorts of bans, although it is a fair question to ask whether it’s effective to devote public resources to enforcing the prohibition of all cell phone use in vehicles instead of, and at the expense of, policing more obviously and more severely unsafe behaviors, or even simply spending the money in any more constructive ways. True, some localities choose to heavily enforce vehicular infractions just to raise money for those public coffers, but one would hope that policymakers are motivated to criminalize behavior only because that behavior poses a true threat — not because its criminalization would seem to be a money-making scheme.
Especially because the true costs of such criminalization can be so much higher than just the costs of enforcement itself. The police power to enforce a cell phone ban can lead to a traffic stop, and from that traffic stop a search and seizure and all sorts of costly legal consequences that free citizens minding their own business and otherwise driving carefully shouldn’t have to face. Particularly in a case such as this when so many people would likely run afoul of this ban, it is even more concerning to have a law that captures the behavior of so many. Criminalization provides too easy a lever for the police to exercise their power over people and should be saved for rarer instances when it would be the only effective remedy against a harm.
Which does not seem to be the case here. Again, it’s not the technology itself that is odorous anyway. It’s only certain effects of its use that’s problematic. It would be better policy to focus only on those effects and only create sanctions narrowly tailored to them. The goal here is to make roads safer, and surely there are better ways to meet that end that involve more carrot and less stick. For example, perhaps there could be ad campaigns that could raise awareness of the problem of driving with *any* distractions, even ones not targeted by this ban. Perhaps there could be increased police presence watching only for actually bad driving. Or improved roads to make them safer generally. Or more funding of mass transit to get drivers, safe and otherwise, off the roads entirely. Ultimately the goal is to have fewer accidents. A solution focused only on that goal will be a lot more effective than one obviously focused on something else.
Update 12/21/2011: Another similar view.