How Data From Wearable Tech Can Be Used Against You In A Court Of Law

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By Alexander Howard

When wearable computers can disprove what someone told police, you know you’re living in a future that has arrived sooner than expected.

According to LancasterOnline, a woman in Pennsylvania has been charged with knowingly filing a false report after forensic evidence and the data from her Fitbit undermined her claim of rape.

The court affidavit obtained by LancasterOnline indicated that data from her wearable fitness tracker showed that the woman in question, Jeannine Risley, was awake and active the entire night, including at the time she told police officers she was sleeping.

This wasn’t the the first time that Fitbit data has been used in a court room. Last November, Parmy Olson reported how a Fitbit was used in a personal injury claim by a personal trainer in Calgary, Canada. In that case, data from the activity tracker was analyzed to establish a baseline reference for her level of fitness to compare it to someone of her age and profession.

In the case in Pennsylvania, however, Fitbut data was directly used to contradict a claim. As Kashmir Hill observed at Fusion, “it’s likely we’ll see more Fitbits being trotted out in court in the future, as the wearable trend takes hold, and self-tracking leads to self-incrimination.”

That’s why this case should catalyze a national discussion about when and how suspects can or should disclose data from a wearable computing device, whether it’s a Fitbit, Apple Watch or Google health wristband. Last June, in a landmark decision on a crucial civil liberties issue, the United States Supreme Court applied the Fourth Amendment to the digital domain, holding that “the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”

According to ABC 27, Risley gave the username and password to her Fitbit account to the local police department, which also discovered the device itself was in the hallway after she claimed it had been lost.

If she had refused to provide access to her account or the device data, it might have led a prosecutor to need to go to court to get a warrant to access the device. If the data was also accessible on Fitbit’s servers, however, it would have fewer legal protections than data on a cellphone or home computer, as is the case with Web-based email and other cloud-based data.

That loophole is one reason that many civil liberties and privacy advocates have been pushing Congress to update the Electronic Communication Privacy Act to give citizens digital due process.

As the United States of America nears its 239th Independence Day, this liberty remains unprotected on the 4th of July. Despite 284 cosponsors for theEmail Privacy Act (H.R. 699), the bill has yet to be brought to a vote. Even it passed into law, however, there’s no passage in H.R. 699 that refers to data from wearable computing.

It may be years before police offers will need to read an updated version of the Miranda Warning to citizens upon arrest: “Anything your data says you did may be used against you in a court of law.”

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