You Are What You Wear

March 2018 | Article

Technical Aspects and Legal Considerations of Wearable Technology

What started as a dream for all Star Trek lovers around the world has become our everyday reality. Computers, smarter than those that allowed us to place a man on the moon, are on our wrists, monitoring our A/C and reminding us that we’re out of groceries. Wearable technology is defined as “multiple items (including those using electronics, mechanical technologies, and functional materials) that are attached to the body, unsupported by the hands … most commonly in-reference-to electronic technologies but can include smart or advanced materials used in clothing or protective equipment.”1 These items are collecting an impressive amount of information about us: our emails and texts, our locations, our overall health and more. With this level of knowledge about our daily lives, wearable technologies are creating new questions surround their use—who owns this data? How is it being protected? And how can this data be used in a court of law?

History of Wearable Technology
Most commonly we see these devices in the form of smart watches, but you may be surprised to hear that the first wearable technology predates our modern era, all the way back to the 17th century! It was a miniature abacus designed into a ring that could be worn by Chinese traders. It won’t monitor your heart rate, but it will certainly get the blood flowing when you make a big sale! Close behind that was the widespread use of pocket watches, followed by wrist watches in the early 18th century.

Cameras have been strapped to people and animals of all sorts in a fashion of “wearable technology” for various uses, but one of the truly ingenious inventions came around the start of the computer age in the 1960s.2 In an article for “EnGadget” and in his book titled “Beat The Dealer,” Edward O. Thorp reveals how he and his companion Claude Shannon used the help of an IBM 704 to develop an input-output device concealed in his shoe; which they would use in an attempt to beat the odds at roulette.3

Going into the 1980s, wearable technology was trying to force its way into the mainstream—watches contained calculators, Walkmans allowed you to listen to music on the go without having to drag around a boombox, video cameras were attached to helmets, and early attempts at virtual reality headsets were introduced. Into the 1990s, we entered the era of portable phones, PDAs and the first smart watches. While it may not seem the same as what we have today, in 1999 Samsung launched the SPH-WP10, the first time a phone was implanted into a watch. At the dawn of the 21st century, Bluetooth headsets made us truly hands-free and led to what we now recognize as smart watches—devices connected to a computer or phone that allow us to track information and keep on schedule. 4

The Information Stored by Wearable Technology
Metadata that wearable devices have started tracking, storing and using for our benefit include the steps you take daily, your heart rate history, sleep patterns, GPS location (also referred to as Geotagging), any information associated with your phone that is paired with the device, and in some instances even more vital medical records such as blood pressure, asthma risk and more. While some of that information may not seem like anything you would be immediately concerned about having stolen, don’t forget that information is extremely powerful no matter how insignificant it might seem.

In addition, that data doesn’t stop with you. It’s transmitted up to a cloud storage service that is hosted by a company, and transmitted to be shown to you on a website or device owned by possibly another company altogether, on channels that are also owned by companies—and each of these paths create giant vulnerabilities to this data.

Again, so what if it is stolen? What are they going to do with the heart rate data for Joe Bob, age 50 who lives in a typical Midwest town and state? Hackers will do what anyone with information that is deemed potentially valuable would do: sell it to the highest bidder. Who would want such information? Pharmaceutical companies for one. With that information, they now have statistics for your age group that can be used for lobbying efforts to the local government, perhaps to enforce legislation that could affect your health insurance premiums, all with information stolen from your devices. 5

Wearable Technology in the Court Room
This information isn’t always used for Black Mirror-level espionage. It has also been used to solve multiple court cases.

In 2015, Richard Dabate was accused of murdering his wife in their home. Dabate had claimed that a masked person had broken in, stolen one of his guns and killed her as she arrived home from the gym about 9 a.m. However, cyber forensic investigators were able to use the metadata information from the Fitbit that Mrs. Dabate was wearing to prove that she was still alive at the time of Mr. Dabate’s testimony. Not only had she walked around for a significant time, they could track her movements from the moment she woke up to the moment of her death. While not the deciding factor, this information was invaluable in dismantling Mr. Dabate’s testimony. 6

In similar instances, metadata information about a person’s heart rate and location was able to debunk a rape allegation and a personal injury suit involving a car accident. In both of those cases, the resting/active heartrate metadata along with the date and time records were used as evidence of a claim. Fitbits have been the main source used for these cases, and it’s not hard to see why—they are widely popular. Many other devices have adapted similar functions that track your every movement and monitor your vital signs.7

Information like this is invaluable to cyber forensic and eDiscovery investigators because of how it is stored in devices. It is very difficult if not nearly impossible to alter this data without it being completely erased. It is important to remember that while information on a users’ vital signs might not seem useful at first glance, it can still help frame the circumstances surrounding a case.  

Legal Questions for the Future of Wearables
Based on those recent case example, it is not hard to imagine how these wearables could be used in court in the future. There’s no doubt that wearable technology can contain electronically stored information such as text messages, email and other information to corroborate that of the synced host device, but the relevance of this information will be up to the attorney of the matter. 

Using this personal information, there will always be issues of privacy concerns. Differentiating between public, discoverable information, what is private and what requires authorization to disclose will be a matter of debate. Who is it that can authorize this information to be released? Where exactly is the information stored? How do I ask my expert to retrieve this data? Can the device company permit the information to be released without the owners consenting approval? Did they already sign this consent away through the terms of use? Is there a login component to the device that further clarifies the owner of the data?

Katherine Veniz points out the continued debate over reliability of witness testimony in her article “The Admissibility of Data Collected from Wearable Devices.” She brings up how, for better or worse, information gathered from wearable technology can be used to confirm or deny testimony in a range of matters including both civil and criminal trials. 8

There are a range of factors that these wearable technologies must go through for us to fully assess the ways they can be used as evidence in litigation. Benefits and counter-arguments have not been extensively tested in court as of this article, however, as they become more mainstream and used in conjunction with other core electronic devices, these decisions are sure to follow suit.

1- The Editors of Encyclopædia Britannica. “Wearable Technology” Encyclopædia Brittanica.Inc. Mar 08 2016.

2- Winchester, Henry. “A brief history of wearable tech.” Wareable. May 6 2015.

3- Melanson, Donals. “Gaming the system: Edward Thorp and the wearable computer that beat Vegas” EnGadget. Sep 18 2013.

4- Lamkin, Paul. “History of wearable technology” Raconteur. Sep 5 2014.

5- Maddox, Teena. “The dark side of wearables: How they’re secretly jeopardizing your security and privacy” TechRepublic.

6- Lartey, Jamiles. “Man suspected in wife’s murder after her Fitbit data doesn’t match his alibi” The Guardian. Apr 25 2015.

7- Foster, Angela. “Legal Implications of Data from Wearable Devices” American Bar Association. Sep 15 2016.

8- Vinez, Katherine E. “The Admissibility of Data Collected from Wearable Devices” Stetson Journal of Advocacy and the Law.

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