There is one thing Jeannine M. Risley now knows for sure: before claiming to be raped, she should have taken off her Fitbit.
As fitness trackers like Fitbit, Jawbone, and Garmin, as well as smart watches such as the Apple Watch and the Samsung Galaxy Gear gain in popularity, consumers are collecting more data about themselves than ever. The fitness trackers, designed as motivational tools, collect data on sleep, heart rate, location, and activity among other things, while the smart watches aim to be a wearable version of your phone. This leads to an obvious question: what does one do with all that data?
In the case of a Canadian plaintiff, one uses the data to back up claims of a decline in post-injury activity. Believed to be the first such case of using Fitbit data as evidence in a court case, the personal injury case was the first in what many see as a growing trend in the law.
In the case of Jeannine M. Risley, the Fitbit data didn’t bolster her claims; it contradicted them. Florida resident Risley, 43, was in Lancaster, Pennsylvania for work, staying at her boss’s house. She claimed she was sleeping when she was raped by an intruder and staged the scene with an overturned chair and a knife nearby. However, when police downloaded the data from Risley’s Fitbit, they found that not only had she not been sleeping, but she was up and walking about the entire night, including the time when she claimed to have been attacked. The Fitbit data was not the only evidence, of course; there were no signs of an intruder nor were there any footprints in the snow surrounding the house. Still, it is hard to argue with the activity data collected by the fitness tracker.
The data from digital technology is also used in divorce cases as spouses use apps to find phones and cheating spouses. While the data from “wearable” technology doesn’t often get used directly as evidence,
[R]ather it may be used to secure evidence. Today’s tools may not be enough for a court to conclude that someone is in the throngs of passion with a paramour. But data showing, say, that someone in a divorce proceeding is near the address of a suspected lover with an elevated heart rate, is probably not ideal for someone in court, either.
Along these lines, Fitbit found itself in hot water when the data settings defaulted to public, meaning that if someone had inserted “hugging” or “kissing” as activities, that data could be found from a simple Google search. (This setting has now been changed.)
Astute attorneys are aware of this technology trend and are doing what they can to take advantage of it. Lawyers are encouraged to ensure the preservation of electronic data early in a case, including “interactive health data,” or data collected by fitness trackers and the like. Privacy experts are also worried about the implications of storing so much data on the Cloud, perhaps negating the need for a warrant to collect the data.
If you find your fitness tracker motivating, and, as in the case of David Sedaris, it motivates you to take more steps (in his case, many more steps), then by all means use it. I wear mine daily for just this reason. Still, it doesn’t hurt to be aware of how much data can be collected on you, and how that could ultimately be used against you if you’re not careful.