The National Transportation Safety Board recommended yesterday that states ban all non-emergency use of portable electronic devices while driving, except for devices that assist the driver in driving (such as GPS). The recommendation followed the NTSB’s investigation of a tragic accident in Missouri triggered by a driver who was texting.

Personally I don’t see how someone can pay attention to the road while texting. (I’m having a hard enough time paying attention to a conference presentation while I’m typing this!) But the National Transportation Safety Board’s recommendation is a classic example of regulatory overreach based on anecdote.  The NTSB wants to use one tired driver’s indefensible and extreme texting (which led to horrific results) as an excuse to ban all use of portable electronic devices while driving – including hands-free phone conversations.  Before states act on this recommendation, they should carefully examine systematic evidence – not just anecdotes — to determine whether different uses of handheld devices pose different risks. They should also consider whether bans on some uses would expose drivers to risks greater than the risk the ban would prevent.

John Schwartz of The New York Times called me two weeks ago and asked for comment about a potential controversy involving mobile phone provider Sprint and the charitable organization Catholic Relief Services (CRS). The facts were pretty sketchy at the time, but Schwartz told me that CRS was accusing Sprint of blocking Mobile Commons, the company that connects CRS and 100 other nonprofit organizations with text messaging networks, from getting a short code to create a charitable mobile donation program in the wake of the Haiti earthquake. Here’s the basic background that appeared in Schwartz’s March 24th article, “Catholic Charity and Sprint Tangle Over Texting“:

[CRS] wanted to try a twist on the technology: when people sent a text message to donate, they got a reply offering to connect them via phone to the charity’s call center. The group hoped that the calls could build a stronger bond with donors, and garner larger contributions as well. But just three days into the effort after the Jan. 12 earthquake, the charity got word that Sprint Nextel was demanding that the “text-to-call” effort be shut down. The charity had 40 days to abandon the feature or lose access to millions of Sprint customers.  Sprint’s original motivations are murky; it said that an intermediary company had failed to properly fill out a form to verify that it was dealing with a legitimate charity.

It didn’t take long for the regulatory activists at Free Press and Public Knowledge to pounce and claim the Federal Communications Commission (FCC) had to intervene to save our souls from the nefarious scum at Sprint. After all, you do know that Sprint hates Haitians, right?  The company obviously wanted to see Haitians starve and not receive any support from charitable organizations.

No, seriously, come on!  How asinine is this storyline?! That’s why, when Schwartz called me about the issue, I felt something else had to be going on here. When he asked me for a quote for the story, here’s what I said, (on the assumption that Sprint probably had some sort of system in place to ensure fraud wasn’t taking place): “most people would say, I want my carrier to be doing a certain amount of policing for potentially harmful or fraudulent activities,” and would hold the carrier responsible if things went wrong.

And, now that all the facts are out, we now know that Sprint had no charity-blocking machinations in mind. Indeed, as I suspected, the company (quite sensibly) has a process in place to make sure that any organization asking for the short code is legit and not a blatant scam artist. Here’s how Sprint explained the situation:

We are simply asking Mobile Commons – the aggregator involved – to adhere to the same reasonable practices with which other entities involved in mobile giving adhere.  Specifically, certify that the charities they work with are 501(c)3 organizations; set up a confirmation process for each short code; and, provide basic information concerning the mobile giving campaign they wish to implement. In turn, this allows us to accurately communicate this information to our wireless customers who call us seeking more detail. Taking these steps also protects our customers and assures that their donations are going where they are intended.

Makes perfect sense to me, especially in light of the unique “text-to-call” service being proposed by CRS and Mobile Commons in this case. If you were a mobile phone operator, wouldn’t you want to a have a process in place to vet short code use so that your users weren’t getting scammed by hucksters? (That’s especially the case in our litigious society, where class-action lawsuits fly at the first whiff of potential trouble.) And as a customer, don’t you hope that your provider has such safeguards in place?  Basically, that’s all that Sprint has done here.

But here’s what I found really surprising, and that you certainly wouldn’t learn if you only listened to the howling in Free Press and Public Knowledge press releases: Sprint never blocked the CRS code at all! A clearly (and legitimately) agitated John Taylor, who handles corporate communications for Sprint, notes:

There is not ONE Sprint customer who has been prevented from using the short code set up by the mobile marketing firm hired by Catholic Relief Services. That’s because the short code is operable on Sprint’s network. (It never was suspended and we never threatened to suspend the code.)

And here’s Sprint’s letter to the FCC responding to the allegations and verifying that the CRS code has been operational and will continue to be so.

Now, let’s get back to the call by Free Press and Public Knowledge for regulatory intervention. They made that call to regulatory arms less than 24 hours after Schwartz’s NYT article appeared. Never mind the sketchy facts, they basically said, we are going full bore forward and requesting action now!  Here’s what they demanded:

“The Commission has an opportunity to establish the rule of law with regard to text messaging and short codes. It can require that carriers deal fairly, and that non-profits and commercial enterprises have the necessary stability and legal protection from unjust and unreasonable discrimination to innovate and explore new ways to use this communications technology. But if the Commission once again turns a blind eye to carrier discrimination by letting the Petition continue to languish, this too will send a message to both carriers and users of short codes, and we can expect such arbitrary discrimination to continue to increase.”

But the problem with this is that the carrier in question (Sprint) was dealing with the situation fairly and in a reasonable, non-discriminatory manner.  The company was applying the same sensible policy in this case they they have applied across the board . And, again, they were not blocking anything at all !

In a truly audacious response to these facts, Harold Feld of Public Knowledge tries to avoid admitting that they were clearly wrong on the facts and instead spins this around to make it all Sprint’s fault. In a response to John Taylor, Feld argues:

the “real story” is that Mobile Commons and CRS must put up with such ridiculous processes and arbitrary treatment at all . That you feel ill-used because the process that you developed and implemented prevented you from discovering that a customer was threatened with a shut off for a relief fund — and that you failed to contact the customer directly after the NYT reporter alerted your company about the problem — emphasizes the phenomenal sense of entitlement carriers have with regard to how they provision what should be a basic service no different from use of an 800 number.

Absurd. What “ridiculous processes and arbitrary treatment” are you talking about, Harold? There’s none here to be found!  Would Free Press and Public Knowledge prefer no process at all?  Again, should any huckster calling themselves a “charity” be able to grab a short code and unwitting “donors” givers straight to their offshore account to pump individual givers’ bank accounts at will?  That seems like bad business to me—for both Sprint and its customers. Indeed, if Sprint didn’t have some policies in place to deal with such things, policymakers would likely be up in arms about it and the FTC would potentially come calling once things went wrong. Or would you put the FCC in charge of monitoring all these things on behalf of carriers? Should the FCC have a whole wing of regulators dealing with standard business practices like fraud prevention? Seriously, why shouldn’t that be handled by private carriers?

Even more outrageous is Feld’s line about carriers’ “phenomenal sense of entitlement.”  What in the hell is he talking about? The only “sense of entitlement” I can find here is the one on display at Public Knowledge and Free Press, two organizations that apparently believe that they are entitled to instantaneous FCC regulation of communications markets based on asinine and unsubstantiated conspiracy theories. Most troubling of all is the fact they couldn’t even wait 24 hours to check out all the facts and see what the real story was—perhaps, by checking with Sprint!  Instead, they displayed a reckless disregard for the truth in their rush to fire off a letter asking the FCC to bring down the regulatory hammer.

Shame on them both.

Texting while driving is generally a bad idea, since it involves taking one’s hands off the wheel and eyes off the road. While not wearing your seatbelt in a car or a helmet on a motorcycle probably only risks your own life, there’s a good argument to be made that distracted drivers put the lives of others at risk. The WSJ reports that 17 states have banned texting while driving outright. But is such regulation really the best way to address the problem?

Technological Empowerment. The WSJ highlights innovative technological solutions that:

1. Block calls and texts while the user is driving; OR
2. Let drivers “speak” their texts using voice-to-text technology.

Those who consider even hands-free cell phone use unsafe will probably insist on the more draconian blocking solution—and want government to mandate it! Such mandates would indeed probably be more effective than relying on the police write tickets to drivers they see texting while driving (especially since such offenses, like calling while driving, usually require some other, more serious offense before an officer can pull over a driver). But do we really need the government telling us when we can use a technology that really might be essential in certain circumstances, or totally safe in others (say, when we’re behind the wheel but stopped at a long light or in a traffic jam)?

The fascinating thing is that these solutions need not be mandated by government: At least some users will actually pay for them! Why? Because, sometimes we’re better off by being able to “bind” our future selves—just as Ulysses asked his crew to tie him to his ship’s mast so he could enjoy the Siren’s enchanting song without giving in to their spell. Similarly, these texting-blocking technologies empower users in three senses:

1. Some users know they shouldn’t text while driving but—like smokers and people who casually pick their noses—just can’t stop, so they want external discipline;
2. Others just want the monthly discount on their car insurance; and
3. Parents want to make sure they can discipline their children, who have a hard time resisting the impulse to pick up the phone.

Obviously, there are limits to how far reasons 1 and 3 can go.  Reason #1 requires at least a desire to change: As the young playboy Saint Augustine prayed, “Lord, make me chaste—but not yet!” Reason #3 requires private sector paternalism in the most literal sense. But reason #2 requires nothing more than the self-interest of users and insurance companies, which can happily coincide with road safety given the right technology. I suspect this solution is much more likely to be effective than simple government mandates, much as insurance company discounts for having smoke detectors, fire extinguishers and sprinkler systems in your home or office are probably more effective at promoting such technologies than the threat of a fine from a government inspector.

Education. Here, as elsewhere, the “less restrictive” alternative to regulation isn’t technological empowerment alone, but empowerment in combination with education. As Adam said in 2007 of anti-cell phone effort: “Banning In-Car Technologies Won’t Work.”

The proper solution here is education, not regulation. During driver training education, teenagers and other new drivers need to be taught the importance of keeping both hands on the wheel and their eyes pointed straight ahead at the road. Operating a vehicle is serious business with serious repercussions if you ignore basic rules of driving safety. But that doesn’t mean you shouldn’t have access to communications / entertainment devices while in your car. We just need to teach new drivers how (and when) to use them properly. For example, set up playlists in your iPod and start them running before you pull out of the driveway. And program the preset buttons on your car stereo or satellite radio device so you can switch stations without looking. If you have to scroll to find something new to listen to, try to do it when you’re at a stop light, not when you’re driving down a busy street with a lot of pedestrians around.

If governments really want to “do something” for road safety, they should build awareness of technological empowerment solutions, especially among parents and kids. They can also fund public service announcements like this one, which is not for the faint of heart:

http://www.youtube.com/v/DGE8LzRaySk&eurl

When I was growing up in Illinois and Indiana, my friends and family used to make fun of me for always having my nose in a book. Everywhere I went I carried a book–first comics then novels–and was constantly reading while I walked about the neighborhood. [I still do so today, except it’s more like nerdy law review articles and government filings these days.] My dad used to always say that if I didn’t cut it out that one day I was going fall on my face or, worse yet, get hit by a car.

Luckily that never happened. But I thought of this again today when reading about this new law from my old birth state of Illinois that would ban texting and talking on mobile devices while walking through roadways. The penalty isn’t all that steep (just a $25 misdemeanor) and the law certainly is well-intentioned (trying to deter pedestrian injuries / fatalities or traffic accidents), but one wonders if such a law is really needed or if it will accomplish the goal of improving public safety.

As a general matter, I think it’s unwise for governments to pass laws protecting people from their own stupidity. But proponents might respond that the measure is equally as important in protecting others from your stupidity. That is, a distracted pedestrian could cause accidents. Therefore, it should be a crime for them to text or talk while crossing a roadway. The problem with that logic is that it could apply to almost any of the countless other activities one does while walking down the road–including reading a book or article like I often do. Or what about listening to your MP3 player? And, quite frankly, the most distracted moments for me while I am walking involve arguments with my wife and kids! So, there are many distractions in this world and we can’t ban them all.

But what if we just banned just this one distraction of texting or talking while walking? Wouldn’t that help public safety at least a little bit? Well, we then have to ask about the effectiveness of such a ban. Do you really think you are going to stop the masses from blabbing on their cell phones all day long? Or texting incessantly? Well, good luck with that. It’s going to take fines that are a lot stiffer than $25 bucks to have a serious deterrent effect. And you’re going to need cops aggressively harassing people at every other corner if you really want to crack down on it.

Which brings up one final point: Is this really a sensible use of law enforcement time? Even minute a law enforcement officer spends policing such activities is a minute they could have spent policing something that represents a more serious threat to public safety.