Internet-based communications technology has advanced at a remarkable pace in the last two decades and, like other rapidly emerging technologies, has presented new challenges to privacy, health and safety, and individual freedom. The technology is promoted both by device providers and by vehicle manufacturers, and is embodied in a variety of devices used aboard vehicles: cell phones; nomadic GPS (global positioning system) devices; fixed in-vehicle screens allowing communication (including texting, data input and retrieval, and other cognitive tasks) between drivers, vehicle occupants, and those outside the vehicle; and other communication technologies that operate when the vehicle is in motion. U.S. and foreign courts and regulatory bodies have addressed the liability of drivers, device manufacturers, and/or vehicle manufacturers when injuries are caused by drivers who were distracted by the use of communication devices. Still, the adverse effects of mobile communication continue to mount.

This comment explores the contours of the law and public policy in addressing this clear and present danger to drivers, passengers, pedestrians, and the general public, and argues for specific interventions to minimize adverse effects on public safety.

We contribute a more comprehensive analysis in a recent article published in the University of Pennsylvania Journal of Law and Public Affairs (https://scholarship.law.upenn.edu/jlpa/).

Although fixed vehicle technologies that permit viewing by the driver are undoubtedly distracting, it is nomadic devices such as cell phones and GPS systems that are viewed as posing the largest potential harm, both because they are ubiquitous and because attempts to restrict their use are often perceived as infringements on freedom of choice and often engender driver resistance. The advent of 5G technologies, with their anticipated increased downloading and streaming capacities, is likely to increase the distractive potential of these nomadic devices.

In large part, government attempts to regulate the vehicular use of such devices – whether through the legislative system or through tort law – have focused their attention on the behavior of the driver. And, in large part, these attempts have not been sufficiently successful. Prohibitions against driver use of cell phones and other hand-held devices are notoriously difficult to enforce. Not only is illegal use often difficult to detect, but it is often difficult to prove beyond a reasonable doubt when it is detected. Even when the penalties for noncompliance are viewed as significant, drivers may choose to continue to use their favorite devices, especially if they view the risk of arrest and conviction as being tolerably remote.

The tort system helps perpetuate this driver-focused approach.

It imposes financial responsibility for injury on the driver, the victim, and their respective insurance companies, while confirming for the device manufacturers that they bear no responsibility. And while the imposition of legal liability on the distracted driver likely does have an impact on other drivers, and likely causes some of them to turn off their cell phones when they get in their vehicles, this remains a piecemeal response to an issue that cries out for a more systemic approach.

Fortunately, a common-sense systemic approach is within reach. Apple holds a patent on iPhone technology that prevents drivers from using the phone while driving, and variants on this technology either exist or are in development. A requirement that cell phones and other nomadic devices be equipped with software that prevents the driver from using the device for other than emergency purposes – which device manufacturers have thus far declined to do – would immediately transform roads and highways across the country, and would provide a strong incentive for manufacturers to develop or implement improvements to existing lockout technologies that would allow passengers to use their devices while the car is moving, thus making the lockout more convenient overall. Ideally, this would be done by federal regulation, but it could be accomplished by the state tort system as well. If even one major state, perhaps with encouragement from the state legislature, were to hold a cell phone manufacturer liable for a failure to equip its phone with a mandatory shutoff function, manufacturers would also feel the need to develop and implement suitable technologies.

Either approach, through legislation or litigation, will require political will and strong backing from the public. Proposed legislation regulating cell phone design likely would meet with considerable and well-funded opposition in Congress. And a state court decision imposing manufacturer liability might well face campaigns in Congress and state legislatures for laws insulating the industry from liability. Nonetheless, we believe that the public safety interests at stake are well worth the effort.

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