01 Dec 2011 NTSB’s Cell Phone Ban is the Nanny State on Steroids

On December 13, the National Transportation Safety Board (NTSB) announced it is recommending a total ban on the use of cell phones and text-messaging devices while driving. Previously, the NTSB had recommended such bans only for novice drivers, school bus drivers and some commercial truckers.

This is a remarkably heavy-handed action.

Every American is concerned about automobile safety, but the response to the problem should be commensurate. Alternatives exist involving the use of technology and information. An absolute ban on all cell phone use is more than a wrongheaded intrusion on our freedom – as it implies adults aren’t careful enough to make responsible decisions regarding cell phone use and driving – it also will be costly to many Americans and dangerous for some.

The cell phone is perhaps one of the most remarkable innovations of the 20th century. Its very ubiquity is a sign of its utility. Restricting access to cell phones illustrates the far-reaching ability of the nanny-state to dictate to ordinary Americans how they will live out their lives without government regard for their input or concerns.

While the NTSB categorizes electronic device use as an example of “distracted driving,” it only seeks to ban one aspect of them – the use of cell phones. Complicated navigation and infotainment systems that often require DVDS and separate manuals to operate aren’t included. Fast food and Starbucks trips aren’t affected. Even drivers practicing in so-called stick shift automobiles or those who apply make-up while driving aren’t affected. Only users of cell phones.

Thanks to the decisions of the NTSB, state regulators and even insurance companies now will have ammunition to insist on new “riders” that restrict insurance coverage for consumers who either have cell phones or who use them while driving. Like policies that used to restrict “radar detector” owners by either allowing insurance companies to drop owners with detectors altogether or raising their rates by as much as $250 a year, the NTSB rule will empower insurance companies and regulators to engage in a financial assault on struggling families at a time many can ill afford it.

Also, many states and localities will use the NTSB action as a pretext for adopting new and higher fines and more aggressive enforcement of existing cell phone bans. For instance, while the state fine for first-time illegal cell phone use in California is $50, after related court costs are included, the actual cost to the driver is nearly $250. Thanks to the NTSB, drivers should expect more of this all over the country.

In addition to being costly for American drivers, this measure will prove dangerous. If fully enforced, people who need cell phone access for their own safety could find it limited. Not only does the NTSB recommend against holding a cell phone and talking in the car, it seeks to ban any use in the car with Bluetooth built-in or aftermarket.

In fact, the Department of Transportation’s current Secretary, Ray LaHood, has said publicly “there’s a lot of technology out there that can disable phones and we’re considering that.” This means that instead of you having the ability to gauge when and whether it is safe or prudent to use your cell phone, the ban will decide for you. While many times it is safe to pull over and stop to make a cell phone call, it is precisely during the period when that isn’t true that you may need your cell phone more than ever.

Additionally, the NTSB ban would mean law enforcement will be given more discretion and pretexts for pulling over drivers. Since singing in the car, talking out loud or even holding a discussion with a child in the back seat of your car can easily be mistaken for cell phone use, law enforcement effectively will have carte blanche to pull practically any vehicle over at any time. Existing protections affecting the legal standards for law enforcement interference with drivers as a result would be significantly eroded. Even if you go to Court to fight, the standard of proof in such cases limits your likelihood of prevailing (it’s your word versus the officer’s) and even a victory may be pyrrhic since you would not be reimbursed for any time you had to take off from work.

Make no mistake, this isn’t a one-off by the NTSB. The Feds are coming: the Department of Transportation and Members of Congress are aggressively pushing this measure. When the NTSB issued its release, Treasury Secretary LaHood, who strongly favors a federal ban on all cell phone use by drivers, said, “The National Transportation Safety Board can speak with a loud voice, and we’re very happy to have them on board.”

And Senators Chuck Schumer (D-NY) and Jay Rockefeller (D-WV) aren’t sitting idly by. If states and local regulators don’t follow the NTSB recommendations fast enough, they’re willing to use the power of the federal government to push this through.

Schumer and Rockefeller already introduced bills in Congress to withhold funds (Schumer) or provide additional funds (Rockefeller) for state highway funding to ensure that cell phone restrictions go nationwide:

S. 1536 – The ALERT Drivers Act – sponsored by Senator Chuck Schumer

Schumer’s ALERT Drivers Act would instruct the Secretary of Transportation to withhold 25% of a state’s federal highway funding if the state does not enact a texting ban. The ban would be required to include writing, reading, or sending using a hand-held mobile telephone, except in an emergency situation. The law would also have to include minimum penalties. The bill defines mobile telephone to include other portable electronic devices. This law is modeled after the drinking age law that requires states to impose a drinking age of 21.

S. 1938 – The Distracted Driving Prevention Act of 2009 – sponsored by Senator Jay Rockefeller

Rockefeller’s S. 1938 provides grants to states that enact a distracted driving law. To qualify for the grant, the state law must include that distracted driving be a primary offense. The ban would need to include not only texting, but also holding a cell phone or other personal wireless communication device. The law would also have to include a complete ban of any mobile device, including hands-free, for drivers under the age of 18.

Let’s be clear. Distracted driving can be unsafe, but a nanny state on steroids kills liberty. Instead of voluntary solutions that rely on education and technology, Washington has supplied a knee-jerk abolitionist ban on all cell phone use by drivers. This is not the right approach. Adults can and should decide what circumstances warrant the prudent use of a cell phone while driving.

The NTSB/Schumer/Rockefeller approach is particularly inappropriate in light of the reality that the typical driver faces any number of distractions when he gets behind the wheel. Pretending we will be safer merely because we can’t use our phones anymore is absurd.

Horace Cooper is an adjuct fellow with the National Center for Public Policy Research and a legal commentator.