Your wearables might testify against you in a court of law

Nov. 20, 2014

If you gather personal fitness and medical data from wearables, you should be aware that your data could be hacked, sold by marketers, or even subpoenaed. I commented on the first two of these possibilities last week.

And now with wearables, writes Kate Crawford in the Atlantic, “The data you unconsciously produce by going about your day is being stored up over time by one or several entities. And now it could be used against you in court.”

Crawford, a visiting professor at MIT’s Center for Civic Media, a principal researcher at Microsoft Research, and a senior fellow at NYU’s Information Law Institute, reports that a court case involving Fitbit data is already underway. The plaintiff wants to use the data, as interpreted by analytics company Vivametrica, to show that she suffers from low activity levels for a person of her age and profession as a result of a personal injury four years ago.

Writes Crawford, “The current lawsuit is an example of Fitbit data being used to support a plaintiff in an injury case, but wearables data could just as easily be used by insurers to deny disability claims, or by prosecutors seeking a rich source of self-incriminating evidence.”

She notes that you cannot be compelled to testify against yourself, adding, “Yet with wearables, who is the witness? The device? Your body? The service provider? Or the analytics algorithm operated by a third party?”

And of course, whether or not courts can demand your fitness data, there is a question about the accuracy of the data. As one commenter to Crawford’s article put it, “My Fitbit thinks I’m running a marathon when I’m knitting.”

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