Texting While Driving (and Invading My Privacy While Texting)

About a week ago, I received an automated message from AT&T telling me that I had a large overage charge for text messages. Considering I had signed up for the “unlimited” messaging plan, this seemed like a non-sequitur. Somehow a mistake had been made in switching me over to the iPhone 4 and I was put on a different plan in error. While it wasted some time, the matter was fairly easily resolved, and the charges were reversed. However, we were discussing the matter while I was driving to school over my car speakerphone (my attempt at multi-tasking) and the customer service rep kept texting me bits of information, like confirmation that my message plan had been switched, or the new amount of money that I owed. I turned it into a joke (there’s a low bar for customer service humor), because the rep had begun the conversation by warning me of the dangers of texting while driving. Every time the rep would send me a text message, I would tell her that, based on her warning, I couldn’t look at any or reply to any of the text messages, and she would laugh.

After the fourth text I didn’t look at while driving, she told me something that I have yet to verify, but which would be an interesting development, if confirmed. The customer service representative said that she had heard that AT&T was cooperating with several insurance companies. In order to reduce the number of accidents related to texting while driving, insurance companies were starting to investigate the cellphone records and texting records surrounding an accident. Your insurance company wants to know whether anyone was texting right before the accident happened. She said that AT&T was working with the insurance companies to deny these claims, and that AT&T was “turning over the records of texting.”

I agree that texting while driving is problematic and that distraction can lead to driver error and an increased accident rate. While unsafe, this behavior is illegal in some jurisdictions but legal in others. I guess what made me uneasy is AT&T’s cooperation to turn over these records, when I think most people tend to think that text messages or phone logs are not subject to being read or viewed unless the user makes them available (or otherwise leaks them). Other questions: what exactly will be revealed to my insurance company? What about the content of messages? Will it make a difference if the driver was texting or just receiving texts (as I was, from the AT&T representative), but not looking at them? My opinion: more transparency is called for.

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6 Responses

  1. Bruce Boyden says:

    Under the Electronic Communications Privacy Act AT&T can’t disclose the *contents* of the message in a non-criminal case without the consent of the consumer, even pursuant to a valid subpoena. More details here: http://law.marquette.edu/facultyblog/2009/01/09/a-reminder-you-cant-subpoena-non-party-isps-for-emails-in-civil-suits/

    But they can disclose the records of *when* messages were sent or calls made without your consent, at least under the ECPA, 18 USC s 2702(c)(6).

  2. Dissent says:

    (Insert standard nonlawyer disclaimer here)

    Miriam: I do hope you follow up on this and let us know what AT&T says.

    Bruce: ECPA may permit disclosure under some circumstances, but wouldn’t AT&T’s privacy policy to consumers still be binding on them?

  3. Ken Rhodes says:

    On cop shows, the detectives are always getting “LUDs” (Local Usage Details) for their investigations. Those tabulations of phone calls (numbers and times) don’t seem (on the cop shows) to require a warrant. This seems reasonable to me. For example, is my phone bill protected? I doubt it.

    Here is an interesting report on the subject by the Department of Computer Science at the University of Pretoria (South Africa):

    http://mo.co.za/open/seqrel.pdf

  4. Bruce Boyden says:

    Dissent, that’s a good question. I was narrowly focused on the ECPA, but there could be other problems with such a practice. For example, the CPNI rules.

    On whether the privacy policy would be violated, I’m unable on a quick look to figure that out. The FAQ for the policy says that AT&T can disclose information “To enforce our agreements, and protect our rights or property;” and “To prevent unlawful use of AT&T’s services . . .” To the extent texting while driving is unlawful or violates e.g. an acceptable use policy, it might fit in these categories.

    I should note for thoroughness that it’s possible the customer rep is simply mistaken, and has confused subpoena compliance for voluntary disclosure.

  5. Dissent says:

    Thanks for your thoughtful reply, Bruce. The fact that you cannot readily figure out whether the privacy policy would permit such disclosure is yet another demonstration of what is wrong with most privacy policies.

    Even if the CR was mistaken, it would be helpful to get a response from AT&T and other carriers as to how they would view such a request or possible arrangement in light of their respective privacy policies. Otherwise, we may have companies signing agreements to make additional money by selling our data while the consumer has no idea that their carrier is [insert legalese for “screwing the customer” here].

  6. Dissent says:

    I contacted AT&T and received a response from them. The correspondence is posted on my blog at http://www.pogowasright.org/?p=16777 but short version: they say they wouldn’t sell or share such data with an auto insurer that way.