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Your Wearable Could Be Used Against You in Court

By Adam Dombchik, Esq.

Facebook, Snapchat, Skype, Periscope, FaceTime, Instagram. Modern technology is a wonderful thing…until it's not.

As technology has evolved from the "wow" factor of the smart phone and the tablet to the tracking ability of every step you take—literally—via such devices as the Fitbit and the Apple Watch, the Big Brother capabilities have joined the evolution.

Wearable Technology as Evidence in Court

Legally speaking, this can be a good thing or a bad thing, depending on what side of the case you happen to find yourself. For instance, according to an article in Forbes magazine, a Canadian law firm used its client's Fitbit data to show that there was a significant decrease in her activity level following an accident. The information from her wearable was processed by Vivametrica, a data company that collects such data and compares it with the health and activity of the general population.  Until now, attorneys have relied on physicians' clinical observations to assess a patient's condition rather than "hard" data.

However, such data from wearables can also hurt a client's case. In Lancaster, PA, a rape complainant's Fitbit data was used to disprove her claim that she was assaulted. It turned out that she was not asleep when the person allegedly attacked her, as she claimed. The Fitbit data showed that she was awake and walking around most of the night. She was charged with filing a false report.
It is clear that wearables and the data they store will be changing the legal landscape. It used to be that as Workers' Compensation and Personal Injury attorneys, we would advise clients about posting photos on such sites as Facebook and Instagram, but this latest technology takes such diligence to an entirely different level.

Apple watches enable you to track your fitness, calories burned, steps taken, hours standing, etc., all of which can be useful or detrimental from a legal perspective.  

And, if you think that there are privacy laws to protect such data investigation, think again. Insurance companies may begin insisting on disclosure of data collected from wearables, and the courts may concur.

Rainey Reitman, activism director for Electronic Frontier Foundation, a privacy advocacy group, told Computerworld  that "wearable device companies  that collect data from users in cloud services can be subpoenaed, just as Google and Microsoft have been for years."

Reitman continued, "There is a clause in the privacy policies of most service providers that states they will release data in response to valid legal requests."

When it comes to personal data that contains health-related information, it may not be protected  under the Health Insurance Portability and Accountability Act (HIPPA). According to Reitman, "Health privacy laws generally only cover certain, specific medical entities—and wearable technology manufacturers aren't one of them."

It is clear that attorneys need to keep themselves updated on technology in order to best represent their clients. We at Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP (GEK) will continue to follow the technological trends and educate our clients on the pitfalls and advantages inherent in the ever-expanding world of technology.

If you would like to speak with a GEK attorney about your legal options, please call 213-739-7000 or click here

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