A black box for the human body? The use of data from wearable devices in the courtroom

The first court case using Fitbit, a wearable movement and sleep tracking device, is currently underway in Canada. The plaintiff in this personal injury case is relying on the data from her wearable exercise device to support her claim that she deserves economic damages.

The plaintiff was injured four years ago when she was employed as a personal trainer. Her lawyers argue that she led an active lifestyle at the time of the injury, and plans to process data form her Fitbit device to support their claim that her current level of activity is below the baseline for someone of her age and profession. She will use this to support her claim for economic damages.

Instead of the raw data being utilized in the case, the plaintiff is relying on an analytics company, Vivametrica, which compares an individual’s data to the general public. Matthew Pearn coins a fitting term for the new wearable devices, calling them a ‘black box’ for the human body.

In Kate Crawford‘s recent article for The Atlantic, ‘When Fitbit Is the Expert Witness‘, she explores the consequences of fitness tracking devices collecting data about our lives. Vivametrica describes their service as providing consumers access to their personal data, but Crawford questions the the blurred borders between the interests of individuals and the employers who are collaborating with fitness data analysts to monitor their staff through ‘wellness programs’.

Although in this first case using Fitbit data, a plaintiff is using it to support a claim of alleged economic damages, similar data could be used by insurers to deny claims or by prosecutors as self-incriminating evidence. In an interview with Forbes, Dr. Rich Hu, the CEO of Vivametrica, said insurers can request court orders to have data from wearable devices released. In the context of the Fifth Amendment, Crawford asks the important questions, “[W]ith wearables, who is the witness? The device? Your body? The service provider? Or the analytics algorithm operated by a third party?”

Although relying on data collected by a wearable device may seem like it would provide an objective snapshot of the wearer’s movement and sleep, there is significant variation in how different companies define and track the data. The author expresses concern that this represents a “much bigger shift toward a data-driven regime of “truth.” Prioritizing data – irregular, unreliable data – over human reporting…”