By: Joseph Rinaldi
Today, one’s smartphone allows an individual to do so many things other than make a phone call. One can use his or her smartphone to pay at the gas station or go to the grocery store due to the rapidly growing technological capabilities of the smartphone. Additionally, concert tickets, airline boarding passes and rewards cards for stores can be stored on one’s smartphone. There certainly seems to be a trend in society where more and more things are migrating onto one’s smartphone, and one’s driver’s license could be next.
Delaware is one of several US states considering digital driver’s licenses, and prototypes will go into experimentation tests in some places this year. If those tests go well, virtual licenses could be offered to the public as early as 2016. The digital license would contain the same information as one’s printed license, including one’s name, address and date of birth, along with a photograph. The digital version, just as your printed license, would also contain a scannable barcode so that machines can read the information. One’s digital driver’s license would also be a mobile app with security protection and potentially real-time data downloaded directly from one’s state’s Department of Motor Vehicles.
Critics, however, have already pointed out some concerns regarding how the use of the smartphone as a driver’s license may implicate one’s privacy rights. These concerns include the right to be free from unreasonable searches and seizures of one’s phone and its contents during traffic stops. Critics have also touched on some technical issues on the law enforcement side such as whether the system that troopers use in their patrol cars will be easily compatible with the digital driver’s licenses. This system is known as Tracs (Traffic and Criminal Software program), and is used by police to complete reports, manage incidents and file charges.
Universal acceptance of an electronic version of one’s license is something that will likely take many years. The printed driver’s license has been a standard for decades and has acted not only as proof that one can drive, but also as a form of identification to verify one’s age and identity. Receiving one’s license is a sort of rite of passage for many teenagers, and proves that the license has a status that transcends mere driving. States that issue digital licenses would need to spread the word among businesses, law enforcement agencies and other entities that such licenses are legitimate identity documents. Even then, however, one is bound to enter restaurants, bars and other businesses that will question the validity of a driver’s license on one’s smartphone. A digital version of one’s driver’s license doesn’t seem like a replacement of one’s regular license right away, but instead a complement to it.
One positive of a virtual driver’s license is that it would be part of a larger societal trend toward digital replacement for things in one’s wallet, and the wallet itself. For example, payment options such as Apple Pay and Google Wallet eliminate the need to carry physical credit cards because one can make purchases using his or her smartphone. Many retailers now offer apps that incorporate digital versions of their loyalty and rewards cards, and some insurance companies now offer digital versions of auto insurance cards. Another positive of a virtual driver’s license is that states advocating for a digital driver’s license believe it would be more secure than the conventional one. The app would contain its own layer of security, such as a PIN or a form of biometrics like one’s fingerprint or facial recognition. This layer of security within the app would compliment the security already existing on one’s smartphone such as a passcode or fingerprint. One more positive of a digital license is that it could be updated more easily than one’s plastic license. The data would be downloaded to or synced with one’s smartphone each time one opens his or her digital license app. It would also act as a backup or alternative if the printed version went missing. As a result, one would not have to make as many trips to the DMV.
Potential concerns that need to be addressed include technological issues. What if one’s phone loses its charge and one can’t turn it on to access one’s driver’s license? What about if one is in a “dead zone,” and one’s phone cannot connect to the DMV’s database? States must consider these issues as they move forward with their pilot programs. Another concern relates to the idea of one’s smartphone falling into the wrong hands, and the digital driver’s license was not sufficiently secured, which would leave one’s information up for grabs. The DMV aims to provide the proper security so that no one can read your digital license without the proper credentials, but the security needs to be solid. Privacy rights, however, seem to be the biggest concern moving forward. For example, if a police officer or retailer needs to see one’s digital driver’s license, can that person look at other items and personal information on one’s phone? What about if a personal notification pops up on the screen? There are concerns that police officers may have to physically touch the smartphone, which could lead to privacy issues and concerns of damaging the device if it were dropped. Furthermore, emails or texts may pop up on the phone while it is in the possession of a police officer, which could lead to search and seizure issues. The US Supreme Court held just last year that cell phones are protected from warrantless searches.
These issues all assume that protocols will be worked out so that a state that does not use digital licenses can still accept one’s digital license as valid. If these concerns can be worked out over time, it seems that the best plan moving forward would be to offer the digital driver’s license as a secondary option where one would automatically receive his or her plastic license and then be asked if he or she would also like the electronic version. By doing so, states will be able to see if there is a bit of a generation gap with the technology, and further determine the best way to administer digital driver’s licenses in the future.
Joseph Rinaldi is a Staff Member of the Journal of High Technology Law. Joseph is currently a second-year day student and President of Suffolk University Law School’s Intellectual Property Law Student Association. He holds a B.A. in English/Creative Writing from the College of the Holy Cross.
