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What You Wear Can and Will Be Used Against You in a Court of Law

WHAT YOU WEAR CAN AND WILL BE USED AGAINST YOU IN A COURT OF LAW

Have we arrived at the point in time where the famous Miranda warning should be revised to advise suspects that not only what they say but what technology they wear can and will be used against them? According to some recent court cases, the answer to that question is yes. Wearable technology such as Fitbit, Apple Watch, Google Health wristband, and many others have gone from novelty items to part of a firmly established market niche. The data compiled by these now common "wearables" is being used in a multitude of ways: health and wellness studies, fitness programs, medical research, and pharmaceutical purposes to name a few.

The potential conflicts are obvious. Is the individual data private to the person wearing the Fitbit or Apple Watch? Is a warrant or subpoena required for the data to be produced? A more subtle issue inherent in using data from wearable technology in court is the reliability of the data. Two recent cases illustrate these issues.

WHEN SELF-TRACKING BECOMES SELF-INCRIMINATION

Jeannine Risley filed a report of rape with Pennsylvania police earlier this year. During their investigation, the police compared the data from Risley's Fitbit during the time of the alleged rape with her statement about what she said transpired. Data from the Fitbit showed Risley to be awake and active at the time of the alleged attack, contradicting her story that she was asleep. The data and forensic evidence disproved Risley's claim of rape, and she was charged with filing a false report. Because Risley had volunteered the information from her Fitbit, there were no issues raised regarding the need for a warrant or whether there had been an unreasonable search or seizure of information.

WEARABLES AS WITNESSES

In November of 2014, a Canadian law firm sought to introduce Fitbit data in a personal injury lawsuit. The plaintiff in the lawsuit was a personal trainer who had been injured, and her attorneys wanted her Fitbit data to establish that her present activity levels are lower than the baseline for someone of her age and profession.

The data sought to be entered into evidence was not the plaintiff's raw data, however. Instead, it was data compiled by a company called Vivametrica which compares individual data with vast banks of other consumers' data from wearable technology. The comparisons yield new data which is used to develop health and wellness programs, analytics regarding individual health information, and to track a variety of trends.

The fact that the data was not the plaintiff's individual data highlights an issue common to traditional witnesses: credibility. Put simply, how reliable is a baseline established by comparison of data according to an algorithm or method not subject to cross-examination or testing? Just as expert witnesses are not infallible, neither is an analytic or trend developed from large data sets.

STAY TUNED

As can be seen from the above discussion, using data from wearable technology presents many legal issues regarding privacy, ownership, and credibility of the data. Although there is some legal precedent found in law regarding cell phones and GPS tracking devices, because of the intensely private nature of the data generated by wearable technology, the issues it raises are unique. As wearables become more like cell phones--everyone will have one--the law will need to become clearer.

CONTACT YOUR ATTORNEY

If you or someone you know has been injured, contact Dave Thomas at The Thomas Law Firm for a free evaluation of your case.

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