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Is FitBit the New Big Brother? The Use of Information Mined by Wearable Devices as Evidence in Criminal Proceedings

Technology has provided us with significant benefits, especially within the last five years, and the extraordinary inventions created post-iPhone. At our fingertips, there is technology that we can slip into our pockets or around our wrists that provides incredible technological advantages to our day-to-day life. But, what comes with incredible advantage also has incredible disadvantages, especially when it comes to our rights to privacy. The use of data from computers as evidence is not necessarily a new concept. However, what is hitting the legal world is the extent that devices, that we either take along with us or wear, may be used as evidence either for our cause or against us.

FitBit Use in Courts as Evidence in Canada and California

In a recent case in Canada and California, courts are finally starting to assess the extent to which wearable data and the information that can be obtained from it may be used in criminal and civil proceedings. Though the current cases at issue deal with personal injuries and the use of the wearable devices to prove how an injury has changed the person’s physical health, fitness, and lifestyles, the data could be exploited for other purposes.

What Information Can Wearable Devices Detect?

The wearable devices that we are seeing nowadays – the Fitbits, Jawbone UPs, and Fuelbands, to name a few – are able to glean a considerable amount of not only your biometric information but also other exploitive evidence such as GPS tracking and locational services. The biometric information gathered in these devices may range from your heart rate, pulse, to exercise data, general health, and diet. The GPS tracking and locational services provide an idea of where the wearer is at all hours, and when followed closely can show a pattern of activity, behavior, and associations, which lead further into the privacy infringement that the aggregate information could provide.

Third-Party “App” Creators Have No Obligation to Protect User Information

This becomes more of a problem as third-party “app” creators have very little recourse to control the dissemination of the information mined by the wearable device. It rarely takes more than a strongly-worded email before a third party gives up the information for use in a civil or criminal proceeding, as there is little to no obligation between the user and the third party not to reveal this information.

Issues Surrounding the Use of Wearable Devices As Evidence

What has been most controversial is the use of this evidence in the courtroom because the data that is accumulated by these devices could tell more about something than was actually experienced. Could a pattern of going to the same location at the same time every day and an increased spike in heart rate and pulse demonstrate that the person is having an extramarital affair? Or just that he or she is diligently going to the gym? The information provided by the data only tells one side of the story; its interpretation, however, could create a significant amount of inference, and if used as evidence in criminal proceedings, the information might tell a different story than the wearer experienced. Also, if the wearer understands the extent that the device could be utilized to accumulate data, the wearer could even manipulate the wearable device to register only what the wearer wants.

The Limitations of Wearable Data

As such, wearable data will most likely never be used as convictable evidence. This data accumulated by the device could only provide a reference for what the wearer experienced and would most likely need additional, corroborated evidence such as eyewitness testimony and more direct evidence before the information could have a significant use in the court system.

Experienced Criminal Defense Attorney in Fort Lauderdale

Wearable data is just one of the technological sources that is mining your sensitive personal information. This type of information can either help or hurt your case during a criminal proceeding. It is important to speak with an experienced criminal defense attorney like Kevin J. Kulik about the exploitation of privacy information in criminal proceedings and the effect it may have on your case. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.

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