Wearable Tech as Evidence in Criminal and Civil Cases

Wearable technology data

Overcoming legal hurdles while taking advantage of the benefits

Crime show fans know that cops are always able to verify alibis by reviewing phone records. Cell phone activity registers pings on the nearest tower, which proves whether suspects were where they claimed to be when the crime was committed. And since TV criminals always make calls or send texts while committing their crimes this is a failsafe method of getting a conviction.

This same general principle is now being applied to users of wearable technology. Wearable technology is sensored devices that are connected wirelessly through a web or Bluetooth connection. Fitbits, smartwatches and safety monitors for seniors are currently among the most widely used. They can be used to track the wearer’s location, activity level, health and much more.

Not surprisingly, the information in some of these devices is now serving as valuable evidence In both civil and criminal litigation.

Examples of actual cases

  1. In a Pennsylvania rape case, the victim claimed to be at home in bed when the attack took place. However, her Fitbit data showed she took approximately 1,000 steps between the the time she said she went to bed and when she called 911. Alleging she staged the crime scene, police charged her with filing a false report and tampering with evidence.
  2. An Ohio man’s house caught fire. He claimed he packed up some bags and escaped through a window he broke open. He also mentioned that he wore a pacemaker. Arson investigators, suspicious due to traces of gasoline at the scene, checked his heart monitor data. A cardiologist read the data and supplied key evidence in the case: that the man’s story was unlikely due to his medical condition and cardiac rhythms before, during and after the fire.
  3. A personal trainer in Canada suffered injuries in an accident before fitness trackers were common. Four years after the accident, her lawyers outfitted her with a Fitbit to monitor her current level of activity. The lawyers gave the data to an analytics company to compare her activity with that of the general population. This will determine whether her level of activity falls above or below that of the average person. Her lawyers hope the data will support their client’s claim that her current activity is below average due to her injury.

 

Wearable technology in personal injury cases

Let’s look at example #2 above in which a party is claiming that an injury prevents them from being as active as in the past. The user’s data from a fitness or activity-tracking device is relevant evidence. But the legal community hasn’t yet caught up with advancements in technology.  The biggest obstacle in using such data as evidence will likely be objections based on right to privacy. The victim’s attorneys will want to avoid a fishing expedition by the defense team.

Another issue could be in proving the data is accurate. Fitbit’s heart rate accuracy is currently being debated. Apple knows the heart rate data on its smartwatch is flawed, particularly when immersed in water, as when user’s are swimming. Irregular movements often result in miscommunication to the device. And readings may be inaccurate if the LED lights on the back panel are blocked by a tattoo, matted hair, or large skin irregularity.

Wearable technology in the workplace

Wearable technology devices are being used in the workplace by many employers and insurance companies in an effort to reduce workplace injuries. Some health insurance companies offer discounts when wearable technology data is submit as evidence of a healthy and active lifestyle.

We may one day see invasion-of-privacy claims surpass wrongful termination as the most frequent workplace complaint. Use of this new technology in the work environment is raising potential privacy-in-the-workplace issues. Below are two examples of areas where problems can arise.

  • Confidentiality. Health information of employees collected to confirm their capability to execute the job is, by law, to be kept confidential. If the information is leaked either by a hacker or another employee, the employer can be held liable.
  • Off-the-Clock Monitoring. Employers may not monitor their employees during off-work hours. Nor can they terminate employees engaged in legal activities, such as political demonstrations or campaigns.

Looking ahead

There are obviously many benefits to wearable technology. The key is responsible use of the data. It’s an evolving technology that’s just in its infancy. We’ll see if the legal community can keep pace with technological advancements.


Sources:

  • Nanci R. Schanerman. “Wearable technology: Counting the steps to a defense verdict.” www.lexocology.com. 11 July 2017.
  • Dick Clarke. “Privacy Is New Hot Workplace Issue for EPLI Claims.” www.mynewmarkets.com. 31 July 2017.
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