The Bureaucrat and the Cellphone Ban

About a month ago, the National Transportation Safety Board (NTSB) chairman, Deborah A.P. Hersman, called for a “first-ever nationwide ban” on “the non-emergency use of portable electronic devices,” including hands-free cellphones, while driving. In a prepared statement introducing the proposed ban, Hersman told the story of a fatal multi-vehicle accident that had recently occurred in rural Missouri, set in motion by a pickup truck driver who’d been using a cellphone while driving:

“And it was over just like that. It happened so quickly. And, that’s what happened at Gray Summit. Two lives lost in the blink of an eye. And, it’s what happened to more than 3,000 people last year. Lives lost. In the blink of an eye. In the typing of a text. In the push of a send button.”

Quickly, critics of the Obama administration raised questions about that “3,000 lives lost” statistic. While some of these criticisms had a peevish tone, their basic point was valid. The 3,000 number was an exaggeration, based on an imprecise use of more defensible fatality numbers.

A few days later, the Washington Post published an opinion column under Hersman’s name that justified the NTSB’s proposal. (The Post’s opinion pages serve as a sort of free press-release service for columns supposedly written by high-level bureaucrats.) The column used most of the same language from Hersman’s earlier statement — but avoided specific figures:

“Washington residents remember well the 2009 Metro crash on the Red Line in which nine people were killed. The number of fatalities from distractions on U.S. roadways is the equivalent of one Metro crash every day of the year. . . . At the NTSB, our charge is to investigate accidents, learn from them and recommend changes. In Gray Summit and on highways across the United States, thousands of people were killed last year in the blink of an eye. In the typing of a text. In the push of a send button.”

There was still plenty of mendacious rhetoric at work in the column. It went on to imply that fatal accidents caused by cellphone use are a growing risk. It stated that cellphones and personal digital assistants have become “ubiquitous”; and it cited a study suggesting that 21% of drivers in the Washington, D.C., area have admitted to texting while driving.

Taken together, these emotionally fraught passages clearly implied that some 3,000 people a year are killed in motor-vehicle accidents caused by sending or receiving cellphone text messages. But that’s not true. The “3,000 lives lost” number comes from an NTSB study of “distracted driving” in general. Based on data from that study, the NTSB estimated that fewer than a third of those deaths could be connected to cellphone use. To repeat for emphasis, even that number is an estimate. (Of course, bureaucratic fiefdoms like the NTSB often issue regulatory decrees based on slight justification and without regard to practicality, effectiveness or cost.)

So, Hersman exaggerated the risk of cellphone use while driving by a factor of at least three — and repeated the exaggeration with carefully calibrated verbiage. And, most important, she used the exaggerations and imprecise rhetoric to support an invasive regulatory action.

She may have figured the mendacity was needed because the general trend has been toward greater safety on American highways. In 1990, about 44,600 people died in car crashes in the U.S.; in 2010, that number had dropped to less than 32,900. This drop is even more striking when you consider that the total number of licensed drivers in the U.S. rose significantly over the same period. According to the National Highway Traffic Safety Administration (NHTSA), there were 1.71 deaths per 100 million vehicle-miles driven in 1994 but only 1.09 in 2010. That’s a major improvement — though you’d never know it from Nanny Hersman.

In significant ways, Hersman resembles other current and former Obama administration apparatchiks. Like Julius Genachowski, she is a career Beltway insider whose slavish devotion to big government overwhelms any notion of private-sector economy; like Elizabeth Warren, her background speaks more to bureaucratic credentialing than education in the classical liberal sense.

Hersman’s December decree urged state governments to prohibit text-messaging and other electronic device use while driving. (It calls, specifically, for the 50 states and the District of Columbia to ban “the non-emergency use of portable electronic devices.”) But her urgency was unnecessary: 35 states already have such rules in place.

If “distracted driving” is a problem, why are cellphones a more urgent issue than other sources of distraction — watching kids in the back seat, eating fast food, studying a GPS map, applying makeup, etc.? A cynic might say that a cellphone ban gives state agencies a broad excuse to harass citizens…and a new source of cash flow for government coffers. But statist hacks like Hersman are too earnest for that.

A more likely answer is that a ban on cellphone use in the privacy of one’s own car is a preemptive regulation. And preemptive regulations have two distinctive traits: they are often misused — and, particularly, overused — by state agencies; and they are often based on shaky logical foundations that sound good on first impression but don’t stand up well to rigorous inspection.

That second trait explains why bureaucrats like Hersman use emotional manipulations to promote pre-emptive regulations.

An important point: The feds’ own research underscored the futility of Hersman’s gesture. An NHTSA report on accidents “involving” cellphones as the cause of fatalities stated that:

“Sixteen percent of fatal crashes in 2009 involved reports of distracted driving and … of those people killed in distracted-driving-related crashes, 995 involved reports of a cellphone as a distraction (18% of fatalities in distraction-related crashes).”

So, Nanny Hersman proposed banning cellphones in cars to reduce a risk that causes — at most — 2.9% of traffic-related deaths.

There may have been other factors affecting her thinking. A few months before Hersman’s proposal, the U.S. Senate considered a Department of Transportation spending bill that set up a $10 million grant program aimed at helping states combat “distracted driving” — and especially texting behind the wheel. According to the bill (S. 1596):

“While there is no definitive data as to how many distracted driving deaths and injuries are caused by cellphone use and texting, 20% of the drivers involved in fatal accidents in 2009 were either using or in the presence of a cellphone at the time of the crash, and there is reason to be concerned about whether the recent rise in distracted driving fatalities is linked to the increasing use of electronic devices.”

Admitting they had “no definitive data” to support their actions, the Solons would bribe states to prohibit citizens from operating a vehicle while in the “presence of a cellphone.” Maybe Hersman wanted the NTSB to administer the grants to the states.

The Senate bill also required $5 million to be set aside “for the development, production, and use of broadcast and print media advertising to support enforcement of State laws to prevent distracted driving.” Maybe Hersman wanted the NTSB to produce those ads . . . and its chairman to star in them.

The Obama administration has never been shy about manipulating numbers and emotions to support its various statist schemes and bureaucratic boondoggles. Specifically:

1. According to the Census Bureau, more than 30 million Americans — one in every seven — live in poverty. And that number is growing, in part, because the Obama administration has expanded the definition of the word “poverty.” The administration has worked to delink the concepts of poverty and deprivation…and redefined poverty instead as being “about inequality.” Traditional metrics of poverty have focused on absolute purchasing power — how much food or durable goods a person can buy; the Obama administration’s metrics focus instead on comparative purchasing power — how much food or durable goods a person can buy relative to other people. This is a statistical trick designed to assure that a fixed portion of the population will always be poor.
2. In the spring of 2011, Obama administration officials publicized the possibility that “82% of U.S. schools” could be rated as failing, according to metrics established by the No Child Left Behind program. Department of Education Secretary Arne Duncan repeated this statistic in numerous speeches — even though education experts called the number “unverified,” “likely exaggerated” and “meaningless to the schools that are being rated.” Even after several education policy groups challenged Duncan’s emotional rhetoric, he and other administration officials showed no inclination to make more precise statements. Some observers suggested the administration’s goal was, rather than issuing reliable numbers, to scare Congress into approving its spending goals.
3. In the fall of 2011, a heated exchange between Rep. Connie Mack (R-FL) and Labor Secretary Hilda Solis made clear that tension between the Obama administration and congressional Republicans over the president’s efforts to bolster the clean energy economy was getting worse. Mack scoffed at administration projections that counted drivers of hybrid buses as “green jobs.” (This dispute occurred during the height of public outrage over Department of Energy loan guarantees — funded through Obama’s $825 billion stimulus plan — to bankrupt solar energy company Solyndra.) Some lawmakers argued that the Obama administration exaggerated the impact that its “green energy” policies had on improving the economy and creating jobs.
4. In late 2011, immigration policy groups noted that the Obama Administration had inflated statistics to suggest that it had deported a “record-high number of illegal immigrants with criminal records.” In fact, the real deportation figure was closer to an historic low. In October 2011, Obama’s Immigration and Customs Enforcement (ICE) director had announced that nearly 55% of the record 396,906 illegal immigrants deported in FY2011 were convicted of felonies or crimes. But the real figure was less than 15%, according to federal records obtained through the Freedom of Information Act (FOIA) by the Transactional Records Access Clearinghouse (TRAC). Specifically, the average rate across the four quarters for FY 2011 was 14.9%.
5. In October 2011, the web site FactCheck.org caught the Obama administration exaggerating the impact of a proposed additional round of “stimulus” spending. (The administration had predicted that its previous stimulus plan would “save or create” millions of jobs. Those predictions turned out to be wrong — some 1.2 million American jobs had been lost during the two years following passage of the 2009 stimulus. In 2011, Obama claimed that “independent economists” agreed that a new stimulus package would “create nearly 2 million jobs next year.” But FactCheck.org countered that the “median estimate in a survey of 34 economists showed 288,000 jobs could be saved or created over two years under the president’s plan.”

Focusing on this or that political prevarication is easy and, on a reptilian level, fun (on this topic, I commend to you Vaclav Havel’s great New Year’s Day 1990 speech on statist lies). But there’s also a bigger point raised by the meddling of bureaucratic schemers like Deborah Hersman and Barack Obama. Specifically: what burden of proof should be borne by a party who proposes a law or regulation?

The statists who support Obama argue that the answer to that question is “none.” They argue that bureaucrats are by definition well-meaning and laws or regulations they propose should be presumed virtuous and effective. According to this peculiar logic, the burden of proof falls on those who question the proposed laws or regulations. Here’s one commenter’s defense of Nanny Hersman’s decree:

“Ms. Hersman was appointed to the NTSB in 2004. I can’t for the life of me figure out what possible political (or other nefarious) agenda she could possibly have in recommending that states ban cellphone usage while driving. I don’t see why we can’t assume that she is a conscientious officer who has looked at the question and sincerely believes that the evidence supports her recommendation. . . . I challenge you to find any study that shows that texting or mobile phone use does not impair driving ability. You won’t find any.”

So, unless citizens can prove something isn’t bad, conscientious officers can ban that thing. This is sophistry. And, in the case of Hersman’s proposed cellphone ban, it’s threadbare sophistry.

A more coherent — and liberty-friendly — approach to government regulation would be that, if a state agency proposes restricting or banning some object or action, it must first prove that:

1. the object or action accounts directly for some demonstrable economic loss, and
2. restricting or banning the object or action will alleviate the loss.

If the agency can’t establish both points, then its proposal would be ignored.

And even if the agency can establish both points, citizens would demand a cost-benefit analysis of the proposed regulation that establishes with some confidence that it will save more in economic losses than it will cost to enforce.

This approach would reduce the amount of statist noise generated by the present administration. And future ones, too.

Back to the point: statists claim that bureaucratic drivel like Hersman’s proposed cellphone ban should be presumed valid. And that those who question it must prove the validity of their questions.

The fruitless search for zero risk fits well into this warped thinking. Whether the particulars involve texting on cellphones, smoking cigarettes, wearing seatbelts, eating Big Macs, or anything else, statist busybodies justify their requirements, prohibitions and other petty tyrannies with good intent. And they imply that their opponents are in favor of the bad outcomes of risky behavior — or are “against safety.”

But a quick text message sent home or to work while driving on an empty country road or stopped in traffic might be as effective a safety measure as wearing a seat belt. Because text messages are time-stamped, people who care about you can know where you were at a given time; this is important, if you don’t show up as expected.

This sort of effective communication may have something to do with the overall trend toward safer U.S. highways. (And most of the existing state laws that restrict or prohibit cellphone use while driving specifically exempt emergency use — such as calls to the highway patrol to report dangerous conditions, etc.)

As I’ve noted, Hersman’s decree was unnecessary. Most states already have laws in place restricting cellphone use by people driving cars; and all states have reckless driving laws that apply to situations in which cellphone use causes dangerous results. But, as one online commenter noted:

“Enforcing laws is so boring. Not only is it work, you get little political benefit from mundane enforcement stuff as it rarely makes the papers. And enforcement of laws may even upset people, causing political problems. But passing laws, now that’s sexy.”

Well, there’s no accounting for taste.

The most damning indictment of the proposed cellphone ban comes from a statistical study conducted by researchers at the Colorado School of Mines. They note:

“On July 1, 2008, California enacted a ban on hand-held cellphone use while driving. Using California Highway Patrol panel accident data for California freeways from January 1, 2008, to December 3, 2008, we examine whether this policy reduced the number of accidents on California highways. To control for unobserved time-varying effects that could be correlated with the ban, we use high-frequency data and a regression discontinuity design. We find no evidence that the ban on hand-held cellphone use led to a reduction in traffic accidents.”

This study is preliminary and based on limited data — but it doesn’t bode well for the cost-effectiveness of Hersman’s futile gesture.

Bureaucrats promulgate regulations. It’s their lifeblood, the air they breathe. A bureaucrat isn’t fulfilling her statist destiny unless she banning or prohibiting something.

But free citizens need to keep in mind that the United States is a country built on the philosophical premise that everything not banned is permitted instead of the tyrannical axiom that everything not permitted is banned.

It’s right there, in the Tenth Amendment to the Constitution. Nanny Hersman and her current boss should take a look.