Wearable Device Discovery
Daniela Lagunas, Law Clerk
Schwartz Semerdjian Cauley & Moot LLP
Wearable Technology & How it Works?
Technology today stores more details of our personal lives than ever. A natural consequence of this involves controversy over privacy and how the law should adapt. Just as Facebook, Instagram, and Twitter have created challenging legal issues over personal data, now too will wearable devices. Wearable devices like smart watches and Fitbits are surging as a desirable new type of technology. According to the International Data Corp., more than 26.3 million wearable devices were purchased in 2017—a 7.3 percent increase from 2016. With the development of new and updated wearable devices every year, they are likely to become a primary source of storage for personal data.
But what exactly are wearable devices? I use the phrase to refer to gadgets like smart watches, fitness trackers, and smart glasses. Companies like Apple, Fitbit, and Google have created these devices that transform the way users communicate, exercise, and keep organized. It seems strange these small devices are capable of performing such major tasks. “Smart sensors” are installed in these devices that connect wirelessly to your smartphone (typically via Bluetooth). These devices can essentially do anything your smartphone does. They can generate and store data, like photos and videos. They can search the Internet and track your GPS. They can monitor your heartbeat, calories burned, steps walked and the intensity of your activity. They can send text messages and answer calls. Operating these devices is as simple as wearing a wristband.
Similarly, Google glasses display information in a smartphone-like, hands-free format. Wearers communicate with the Internet with natural language voice commands. Google glasses allow its users to browse through the Internet and use apps like the camera, maps, and calendar. Users operate Google glasses by simply wearing them like regular glasses.
Discovery & Courtroom Proceedings
Attorneys are required to keep up to date on the law and new avenues that deal with important evidentiary concerns. Specifically, this article will focus on new avenues for seeking relevant evidence relating to wearable devices.
While new technology always undergoes extra scrutiny, wearable device data in certain instances can be admissible. All this data generated by wearable devices has the potential to either make or break a case. A criminal attorney can use wearable device data to establish whereabouts for an alibi. A personal injury attorney can present movement and heart rate data to show someone was too calm to be involved in a car accident. Alternatively, an elevated heart rate can support a claim that a person did suffer an accident.
The first known use of wearable device data as evidence in litigation was in a personal injury case in Canada in 2014. The case involved a female personal trainer who used her Fitbit data to support her claim that she was entitled to disability benefits. She presented evidence that her physical activity decreased after she was injured in a car accident by showing data of her gym visits before and after the accident. Her Fitbit data showed that her post-accident activity levels had fallen below average for women in her demographic.
One of the most notable criminal cases was in 2017, in State v. Dabate, Tolland Superior Court, Connecticut, Docket No: TTD -CR17-0110576-T. In that murder case, the prosecution used Fitbit data to show that the victim was still alive for more than an hour after the defendant claimed she was murdered. Likewise, in Commonwealth of Pennsylvania v. Risley, No. CP-36-CR-0002937-2015, a 2015 personal injury action, a Fitbit was used to charge a woman with making a false report to law enforcement after she claimed she was sleeping immediately prior to being raped. Data from the Fitbit contradicted her police report and showed that she was awake and walking around at the time she alleged she was sleeping. Police used this evidence to prove that the woman was most likely staging a fake crime scene. In a San Francisco case, attorneys obtained data from a wearable device, called Strava (a competitor of Fitbit), to show the defendant was speeding and was liable for the accident. Strava tracks a user’s runs, rides, and cross-training.
Moreover, this rapid development of wearable devices has recently prompted insurance companies to instruct claimants to undergo assessments via fitness trackers. Some have also started looking at fitness trackers as a way of measuring relative fitness of potential subscribers. Similarly, corporate wellness plans have seen employers provide fitness trackers as part of company encouragement to boost activity—and reduce company and health insurance premiums.
Under Federal Rule of Civil Procedure 26(a)(1), data stored in wearable devices may be a an “initial required disclosure.” In light of these cases, attorneys should inform their clients to take cautionary measures when litigation is reasonably anticipated. Users of wearable devices must preserve the data collected by their devices in order to avoid spoliation sanctions. Under Federal Rule of Civil Procedure 34, wearable device data also qualifies as electronically stored information, which permits for production of data stored in any medium that can be obtained directly from an opposing party. Since the language of “any medium” is broad it likely includes wearable devices. Of course, a party must specify reasons for requesting the wearable device’s data and particularly describe with particularity its potential probative value. As wearable devices continue to grow in popularity, attorneys must realize their evidentiary value in discovery and courtroom proceedings.
Problems with Wearable Devices
While wearable device data may provide highly probative information to a case, there are potential complications. Wearable devices present evidentiary challenges, such as relevancy, authenticity, reliability, and accuracy of such data. For example, wearable devices are vulnerable to fraud since they are easily worn, accessible, and can be worn by someone else. Additionally, the electronic data found on wearable devices could be considered as self-incrimination because a person produces the data by simply going about their day.
However, proponents of wearable device data argue that authenticity can be established under Federal Rule of Evidence 901(b)(1). Under this rule, an owner of a wearable device can authenticate the data by being questioned on the stand. Such a person has the knowledge required to qualify as a witness under FRE 901(b)(1). Another way to authenticate the data is under FRE 901(b)(3), which allows a computer forensics expert to verify the data’s origin.
Reliability may also be an issue for attorneys requesting the data. For example, Fitbit and perhaps other wearable devices might erroneously track steps while a user is traveling by car or cycling, thus generating incorrect data. An attorney can resolve this issue by presenting evidence of the device’s error rates generated by the manufacturer.
Currently, no federal statute regulates smart watches or other wearable devices. HIPAA does not safeguard the information stored on these devices because wearable devices do not qualify as “covered entities” under the statute. Theoretically, the data could be made available for sale to marketers or released with fewer restraints to other third parties. Thus, to mitigate the issues of privacy expectancy, users should be thoroughly aware of all the possible risks of their personal data becoming public.
There is no doubt wearable device technology will influence how attorneys will seek to admit or prevent device data from being discovered and admitted as evidence. This data has and will impact future courtroom and litigation proceedings. As the use of these devices becomes more prevalent, attorneys should anticipate that wearable device data implicates the same spoliation and preservation rules as text messages, emails, and other electronic information.