The Wearable Dilemma: Anything You Do May be Used Against You in a Court of Law

A former personal trainer in Calgary is using her FitBit (a wearable activity tracking device) data in an effort to prove, beyond a reasonable doubt, that the effects of an accident she was in four years ago has severely impeded her once active lifestyle. According to an article on Forbes, her personal FitBit data is being benchmarked against that of the general population using an analytics platform called Vivametrica.

“We’re expecting the results to show that her activity level is less and compromised as a result of her injury,” said her lawyers at McLeod Law. According to her lawyers this case is “unique,” and does appear to be the first known case where data from a wearable is used in court.

This is a double edged sword—if a president is set that a person’s wearable data can be used as evidence in a lawsuit, then how long will it be before insurance companies start to subpoena wearable data in personal injury cases as part of prosecutions?

Dr. Rick Hu, co-founder and CEO of Vivametrica states that, “Insurers wouldn’t be able to force claimants to wear Fitbits as part of an “assessment period.” However, insurers could instead request the data from a law firm or even from Fitbit (or other device manufacturer) directly.

To go a step further, with the advancement in smart phone technology, every mobile device is slowly becoming a health tracking device. With increased efficiencies in battery life, and new software like Apple’s Healthkit we’re seeing the use of a mobile device’s sensors, such as GPS, accelerometer, magnetometer, and gyroscope, used for the tracking of all kinds of activity, effectively making the smart phone a pedometer and fitness tracker built into one. If it’s determined that your device data is submissible evidence, then how much of a stretch would it be before the data from all of your electronic devices could be used to track not only your whereabouts, but the types of activity you were doing such as walking up stairs, jogging, or hitting the gym? Add a few additional sensors into the fold, like heart rate and temperature monitors, and the data becomes increasingly complex. We can be sure that we’ll hear a lot more about court applications to utilize this type of data in legal proceedings.

Gone are the days when a simple neck brace and a cane could be used to convince a court that someone has suffered a debilitating injury. The use of wearable data may ultimately hold the keys to the truth in many cases. The benefits for those who need to back up genuine insurance claims with data are great, but I have no doubt that there will be all kinds of privacy concerns when third parties try to forcibly collect this data.

Allowing access to wearable data may help to prevent frauds from trying to manipulate the system, and can help bolster legitimate cases, so what could be wrong with that? The fine line is how to regulate data access and ensure that it isn’t used to discriminate against people. Employers, financial organizations, investors, government organizations, police, and even lovers could all have an interest in perusing someone else’s data for their own gain. Where does one’s essential right to privacy end, and the need for total transparency begin? We need to be careful not to open Pandora’s box and start a journey towards an Orwellian future where constant surveillance becomes the norm.


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