f/k/a . . . the archives

June 30, 2008

California’s make-believe car phone safety law: banning only hand-held cellphones is a sham

Filed under: Haiku or Senryu,lawyer news or ethics,viewpoint — David Giacalone @ 10:47 am

monkey cellphone small Sometimes, it’s really hard to avoid cynicism over phony politicians, greedy special interest groups, and — let’s be frank — the spoiled, self-absorbed American public. Case in point: the so-called safety law that goes into effect in California tomorrow, July 1, 2008, relating to the use of cell phones while driving. See Cal. Vehicle Code, Division 11, Chapter 12, Article 1, Section 23123; Cal. DMV: Wireless Telephone Laws FAQs.

Summary of the new California Law: Unless you are using the phone to make an emergency call to the police, a doctor, or other emergency service provider, no hand-hand cell phone may be used by the driver of a vehicle after July 1, 2008, in California. Also, drivers under 18 (who apparently have much less political clout than their elders) are quite annoyed, as they may not use any cell phone while driving, except for emergencies.

Which leaves this old cynic asking:

What were these guys thinking (or trying to achieve or avoid), when they decided to permit the continued use of hands-free devices while driving? They had to know what study after study has demonstrated: hands-free car phoning is just as dangerous as the hand-held variety, because the problem is mainly one of distraction (and “inattention blindness“), and not the number of hands on the wheel. DWP — driving while phoning — leaves the driver as incapacitated as does DUI, with slower reaction times, longer stopping distances, and poorer judgment. Plus, allowing hands-free calls is very likely to increase the amount of DWP. See., e.g., “Industry Pushes Headsets In Cars, Agency Sees Danger Hands-Free Cellphones May Be No Safer Than Hand-Held” (The Wall Street Journal, July 19, 2004); “Hands-Free Cell Phone Use Takes a Hit”  Cars.com, June 9, 2005, orig. pub. in Detroit News); “Cell Phone Users Drive Like Old Folks” (Univ. of Utah Press Release, Feb. 1, 2005).

afterwords (July 1, 2008): Many thanks to Scott Greenfield at Simple Justice for pointing to this post and adding his customary incite-full insights. See “Driving with Cellphones — the Anti View” (July 1, 2008) In addition to rejecting slippery slope arguments, Scott declares: “I (like David) fail to see any necessity in using a cellphone while driving that justifies any increased risk to any other human being under any circumstances. Want to call? Pull over. It’s that simple.”

update (Jan. 14, 2009): See our post with the good news: “bravo: NSC wants to ban all phoning while driving.”

important update (July 21, 2009):  Many thanks to the New York Times for dedicating significant resources and space to the carphone safety problem and the failure of politicians and the public to heed the warnings. “Driven to Distraction: Drivers and Legislators Dismiss Cellphone risks” (July 20, 2009) ; “U.S. withheld data on risks of distracted driving” (July 21, 2009, page A1); plus, a never-released Draft NHTSA policy statement.

Also, see what NYT’s Ethicist Randy Cohen had to say about whether to comply when people ask you to call them while they are driving, in his column called “Distraction to the Driven” (Dec. 28, 2008), including:  “For a driver to deliberately increase his own peril is unwise; to endanger other people is unethical. You should not abet either.”  And, “That many states, including New York, bar drivers only from using hand-held phones is an act of breathtaking cynicism or dazzling ignorance. They might as well ban only gray cellphones but allow black ones.”

J. Craig Williams explained the situation pithily at his weblog earlier this month (May It Please the Court, “Driving While Talking: California’s Newest Crime,” June 11, 2008):

“No more driving with one hand on the wheel, one hand on the cell phone and your mind somewhere else.

“Well, you’ll still be able to have your mind somewhere else, just not with one hand on the cell phone.”

As I said in a Comment at Craig’s weblog: “It is disappointing to see that California has adopted the unprincipled compromise of allowing hands-free phoning (in order to make believe the politicians are serous about safety) . . . Indeed, allowing hands-free DWP merely makes it possible for irresponsible drivers to find something else to do with the extra hand.”

traffic patrol When you look at their law enforcement scheme, the seriousness of the California cell-phone driving laws is further in doubt: The fines are relatively small ($25 for the first offense and $50 for subsequent convictions); no points will be taken off your license; and the Highway Patrol has announced that they won’t be pulling people over for merely using hand-held cell phones, although the law permits them to do so. See “Drivers, retailers prepare for state law on cell phones” (Marin Independent-Journal, June 23, 2008). Experience in other States, such as New York — where scofflaws predominate — makes it clear that immediate, strict enforcement is essential, to have a significant chance of achieving a serious level of compliance. When it comes to DWP, a safety-conscious Governor needs to be a Terminator, not a feel-good Kindergarten Cop.

update (11 PM, June 30,2008): I just learned that Washington State also bans the use of hand-held cell phones while driving as of July 1st. Here’s a good quote from an AP article:

But traffic-safety advocates say the new laws will have little impact.

“Laws like Washington’s probably will have a big effect on making people feel good about passing a law but zero effect on highway safety,” said Russ Rader, a spokesman for the Virginia-based Insurance Institute for Highway Safety.

However, the new laws could have a big effect on businesses that sell headsets and related projects.

Admittedly, I’m a little obsessed by this topic (which teaches us so much about the state of the American psyche and its politics), and have been writing against DWP for a long time. It was, in fact, the topic of both my very first piece of paid internet punditry: a March 2000 “Advocate This!” column for the now-defunct Prairielaw.com, entitled “Shut Up and Drive“, and a major op/ed piece written for the Schenectady Sunday Gazette (“Car-phone ban is easy way out,” May 20, 2001), at the time when New York’s then-Governor George Pataki had proposed to ban hand-held car phones.

Because I am greatly disappointed that the trend-setting largest state in the Union is heading down the same sham-safety road as New York, New Jersey and D.C., and because neither of these gems is available currently online, I’m going to indulge my editor’s prerogative and quote major excerpts from each piece below the fold.

In the Prairielaw piece, I expressed the hope that politicians would reject the “easy compromise” of banning only hand-held phoning by drivers, which would let them avoid a larger confrontation with the telecommunications industry and with cell-phone-addicted voters. My argument then is still valid and been validated by many studies: Banning hand-held phones will do nothing to lessen the inherent distraction caused by a mobile telephone conversation. For example, I argued in 2000:

“Studies show no safety advantage using hands-free phones. Banning hand-held phones may in fact make the problem worse by encouraging more car phone calling. Judging from its many ads for hands-free devices, the car phone industry might actually favor a ban on hand-held devices, as it would force millions to buy new models to make billions of additional phone calls from their cars.”

Sorry to say, that prediction has come true in car and car-phone happy California. See, e.g., “Hands-free law boosts headset sales” (Marketplace Report, npr, June 23, 2008); “Top Brands Leverage Hands-Free Cell Phone Laws” (OnLineMediaDaily, June 23, 2008); “Merchants see hot sales for hands-free devices” (Marin Independent-Journal, June 23, 2008)

Actually, the problem is far worse than it seemed just a decade ago. Back then, cell-phoning was something that most drivers only did occasionally and quickly. Now, a large segment of the American driving public are chronic phoners, making long, serial phone calls. By 2005, Americans chalked up a billion minutes a day chatting while driving, and the numbers have surely climbed dramatically since then, as many drivers have grown to view DWP as natural and their birthright. The trend is further exacerbated by all of those auto manufacturers that are now intensely advertising hands-free devices pre-installed in their vehicles, and cell-phone service providers offering plans with virtually unlimited calling time.

And, note: “A recently completed study points to a separate potential danger: Even truly hands-free phones can be time-consuming to dial. It found that headset users with voice-activated dialing took an average of 37 seconds to dial their calls versus 20 seconds for those who picked up the phone and punched the buttons.” Also, “[T]he Swedish National Road Administration installed cameras in 40 cars and found that drivers wearing headsets drove faster than drivers holding their phones. Braking time slowed by as much 45% for cellphone users, with no improvement for those wearing headsets.” See Agency Sees Danger above.

It is the intensity of the distraction — you have to process interactive communication without visual clues — and the duration of the calls that make DWP far more dangerous than the strawman comparative activities often pointed to by car-phone advocates, such as eating a hamburger, switching the radio channel or CD track, or even putting on mascara. Of course, as I noted in 2000,

“The reality, however, is that politicians don’t need more data on car phoning, they need more backbone.”

In 2004, National Highway Traffic Safety Administration’s administrator Jeffrey Runge said “The thing that disturbs me is that we have states and local municipalities making rules that basically give hands-free phones a free pass as being safe. That’s not good policy.” In addition, my Gazette op/ed piece argued:

“Even more worrisome, passage of this legislation will almost certainly preclude additional car-phone bans for many years to come. I can already hear the lobbyists and their legislative mouthpieces decrying the unfairness of any additional ban, because of the good faith ‘investment’ of their customers and companies in the ‘legislatively-approved’ hands-free devices.

” . . . This is clearly an instance where having no law is better than having a bad law.”

updates (July 1, 2008): See/hear coverage from npr’s Morning Edition, “California Driving: Footloose and Hands-Free” (July 1, 2008), which does a surprisingly poor job of explaining what is different about DWP, and notes (as did the LA Times today) that “It’s unclear whether the law will be uniformly enforced across the state.” Meanwhile, the Washington Post‘s TechCrunch weblog suggests that “the real deterrent is public opinion” not the $20 fine, and concludes:

“There’s just one problem – some studies have shown that talking on hands-free devices are just as dangerous as talking on cell phones regularly.

“And of course one result of the new law will be that people who talk on their cell phones while driving now have to keep a lookout for the police, too, distracting them even more.”

Besides warning folks to “watch out for motorists fiddling with headsets,” an editorial headlined “Driving while phoning” [nice turn of phrase] in today’s Los Angeles Times makes a few points worth repeating:

“The cellphone restriction will prove worthy if accidents decline.

“It would be unfortunate if a majority of drivers responded by getting too comfortable with their new headsets and taking one more step toward turning their cars into mobile offices. As traffic worsens and people spend more time on the freeway, we look for ways to make the lost time productive. But driving while phoning or, more dangerously, while texting — oddly still perfectly legal for adult drivers — endangers lives and slows traffic even further.

“That leaves this safer solution . . . : Just turn off the phone until you turn off the engine. “

Want to know who’s to blame for California’s mostly-farcical hands-free cellphone safety law? The Mercury News says today that it’s Palo Alto’s Democratic State Senator Joe Simitian, a 55-year-old Boalt Hall law graduate, who has been pushing for it since 2001. At his legislative website, Simitian describes his professional background as “attorney, businessman and city planner.” (He has both a law degree and a masters in city planning from U. Cal. Berkeley.) Simitian clearly hopes to saves lives with his hands-free cell phone law, and I do not fault his motives. His site points to an article from MSNBC, “Hands-free phones are lifesavers, study says” (by Mike Stuckey, May 13, 2008) that describes a controversial study that predicts a savings of 300 lives a year in California from banning hand-held DWP. The study was by Jed Kolko, a fellow at the nonpartisan Public Policy Institute of California. The articles notes:

Most of those lives will be saved when the roads are wet or the weather is bad, said Kolko . . .

To a lesser effect, the laws reduce fatalities during rush hour, he said. “They don’t seem to have an effect on fatalities in good driving conditions.”

The f/k/a Gang was pleased to learn that Sen. Simitian has a new bill pending [SB 28] that would ban text messaging and e-mailing while driving. See “Legislation Outlaws Text Messaging While Driving” (KCBS.com, June 20, 2008). Of course, if he wants to get even more serious about saving lives and preventing accidents, we hope he will start working today on a total DWP ban in California.

phone old Please click on the “more” link below to continue reading excerpts from my prior attempts to explain why a hand-held-only ban is “phony safety legislation,” that is not only dangerous, but actually worse than no ban at all.

in the middle
of the distraction –
an interruption

…………………. by dagosan

Here are a few excerpts from my March 2000 “Advocate This!” column for the now-defunct Prairielaw.com, entitled “Shut Up and Drive” (opening image):

  • Car phones have turned America into a nation of teenagers. Not thoughtful, curious teens either — but the glued-to-the-phone, risk-denying “whatever”-type adolescent willing to put everyone’s life at peril for their own convenience, fun, or even profit.
  • A study by Toronto researchers, reported in The New England Journal of Medicine in 1997, found that the risk of having an accident is four times greater if the driver is using a cell phone — the same risk as driving at the legal drinking limit.
  • Of course, driving wile on a cell phone is dangerous. But those who do it use the excuses that parents might hear frm rebellious teens: “Why don’t you ban radios or talking to passengers or eating in cars?” Well, radios and hamburgers don’t talk back, expect answers, make demands or require intense concentration. Fellow passengers, unlike phone buddies, can see when traffic demands your attention.
  • Are we really a nation of egocentric drivers addicted to cell phones? Will the convenience of wireless communication (and the “need” to do business or socialize) win out over the need for driving safety? As with most consumer problems, a better-informed public may be the key to finding a solution. [Ed. Note: Boy, was I wrong on that point!]
  • Studies show no safety advantage using hands-free phones. Banning hand-held phones may in fact make the problem worse by encouraging more car phone calling. Judging from its many ads for hands-free devices, the car phone industry might actually favor a ban on hand-held devices, as it would force millions to buy new models to make billions of additional phone calls from their cars.
  • Serious citizens need to start the serious work to ban drivers from using cell phones. They should face heavy fines, loss of points on their licenses and criminal responsibility if they cause an accident while on the phone. Where a ban is not politically feasible, insurers should be required to make cell phones a risk factor in setting auto insurance premiums and law enforcement agencies should be required to keep statistics on car phone use in accidents.
  • The reality, however, is that politicians don’t need more data on car phoning, they need more backbone.

[Personal Aside: This cell phone column was my first piece for Prairielaw.com and the first time in decades I had to deal with an editor or boss writing the headline or title of something I penned. My suggested title was "Hang Up and Drive," but the editor -- without telling me -- changed it to the rather rude "Shut Up and Drive." I've had the same problem since then with newspaper op/ed pieces -- editors who miss the point or try to be provocative. One excellent advantage of being a weblog proprietor is being responsible for, and in control of, my own headlines.]

Here is a slightly truncated version of my op/ed Viewpoint piece written for the Schenectady Sunday Gazette (“Car-phone ban is easy way out,” by David Giacalone, May 20, 2001):

Car-phone ban is easy way out

Sometimes I hate being right. That’s especially true when I’ve questioned the motives or courage of politicians — because being right usually means the public is being fooled, cheated or injured.

It seems I was correct last spring, when I worried in print that our leaders would take the easy way out on the issue of car-phone safety. With Gov. George Pataki’s endorsement last week of a ban on hand-held car phones, and the encouraging response at the Capitol, it seems that New York is about to have the first statewide car-phone ban in the nation. It is a ban that will permit the continued use of hands-free car phones while driving.

. . . While on the phone, drivers are significantly worse at anticipating hazards, choosing when to change lanes, and judging safe stopping distances. A 1999 report by the conservative American Enterprise Institute predicted that there would be 10,000 serious accidents and 100 deaths per year from DWP in the United States.

No matter what Car-phone Cowboys want to believe, DWP greatly increases the chance of a collision, because the brain is not adequately focused on driving. Despite what your grandpa or our governor might say, there is no evidence that the danger depends on whether the device is in your hand.

Opponents of car-phone bans like to make comparisons with other activities regularly done by drivers. However, because they are interactive, telephone conversation are simply far more distracting than listening to the radio, changing channels, eating or lighting a cigarette. . . .

Yes, the few moments spent dialing or picking up a car phone are just as dangerous as the moments spent fiddling with the radio or CD player or unwrapping food — but a different and very dangerous additional distraction is created by the minutes actually spent in conversation on the phone. That’s why bosses who let employees have the radio on in the office all day, or eat snacks at their desks, do not allow unlimited private phone calls. Telephoning takes up too much brainpower to permit other complicated or focused activity to be done well.

More important, compared to other frequently performed driver distractions, the dangers of DWP are greatly increased by the amount of time involved. It only takes a few seconds to light a cigarette, or fiddle with the radio dial or deal with a restless child, and you can postpone or immediately stop such activity if traffic demands more of your attention.

In contrast, [a large proportion of cell phone calls take many minutes] . . . That’s a lot of serious distraction, during which driving conditions can change dramatically, even if it seemed perfect for telephoning when the call was started.

Since it is the intensity and duration that makes DWP dangerous, it is not the least bit surprising that studies have foundno safety advantage using hands-free car phones. The real danger is not from having only one hand on the wheel — it is from having too little of your brain focused on your driving.

If safety is your goal, then, the current proposals that would merely ban hand-held devices are clearly off the mark. Such a ban would be virtually worthless, but not harmless. . . . [B]anning hand-held phones would almost certainly make the problem worse by encouraging more car-phone conversations.

. . . This result cannot be lost on the car-phone industry, which is busy hawking plans with virtually unlimited amounts of calling time, while urging consumers to purchase hands-free devices, often implying that they are safer.

Even more worrisome, passage of this legislation will almost certainly preclude additional car-phone bans for many years to come. I can already hear the lobbyists and their legislative mouthpieces decrying the unfairness of any additional ban, because of the good faith ‘investment’ of their customers and companies in the “legislatively-approved” hands-free devices. . . .

Only a ban on all driving while phoning (except for emergency phone calls to 911) can adequately protect the driving and walking public from distracted car phoners. Indeed, a total ban can be effective (unlike a ban on eating or yelling at your kids), because each cell-phone company has a record of the time and duration of every call made. Once law enforcement has a reason to cite a driver for apparent phoning while driving, proving whether or not a cellphone was in use at a particular time should be quite easy, making false denials less likely.

This is clearly an instance where having no law is better than having a bad law. The hands-free car-phone bill is a compromise the public cannot and should live with. If there must be a compromise, let’s make it a responsible one: Sunset a total ban in four or five years, while awaiting reliable information from other states about the dangers or safety of hands-free carphoners and other electronic intrusions, and seeing if the auto and telecom industries can really come up with safer alternatives.

We need to ask our leaders — and our fellow motorists — to do the right thing and not the convenient thing.

DriveNowTalkLaterG Finally, for a free “Drive Now, Talk Laternpr Car Talk bumper sticker, just send a self-addressed business-size envelope with first-class postage on it to:

Bumper Sticker
Car Talk Plaza
Box 3500 Harvard Square
Cambridge, MA 02238

For more discussion from Tom and Ray Magliozzi and links to research and reports, see “‘Car Talk’ Guys Declare War on Cellular Phones” (Nov. 9, 1999)

empty farm wagon
a cell phone
buzzing under the hay

– from World Haiku Review, Vintage Haiku by Randy Brooks

4 Comments

  1. D:

    Great haiku on distraction …

    Don

    Comment by Don — June 30, 2008 @ 4:53 pm

  2. CA lawmakers just want to boost our flagging state economy by making us all buy new bluetooth and other nonsense phone accessories.

    [Editor's Note: Being adverse to Comment Spam, we prefer that commentors use a personal name, not a company name.]

    Comment by Rachel — July 1, 2008 @ 2:35 am

  3. When I was young, they had these things that were like large walk-in boxes on some street corners. They had large phones mounted inside, and you could put a quarter in and call someone.

    They were wonderful because when you were out on a weekend night you could always tell your mom “I would have called, but there wasn’t a phone.” I don’t know what kids these days do.

    Comment by Anne — July 1, 2008 @ 11:26 pm

  4. [...] law came into effect today. Another way for the cops to get their revenue quota, with a very questionable basis in [...]

    Pingback by Why is a raven like a writing desk? » Blog Archive » Miscellanea — July 1, 2008 @ 11:34 pm

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