Editor's Note: This post, first published last November, brings up issues that are still very relevant today:
Speaking of unintended consequences. As the diversity of data inputs widen, their unexpected uses in all aspects of social, cultural and legal life mount. Using digital data records, search and browser histories in court is nothing new. All the major players in tech have had lawyers subpoena records for cases. But combining big data analytics and the data thrown off by personal activity trackers is an interesting twist that ups the ante in future litigation.
As Forbes reporter Parmy Olson recently covered, a Calgary law firm is using Fitbit data to help build a personal injury case. Lawyers are using a Fitbit on the woman bringing the suit to document her current level of activity. That data is being compared to historical data of average activity data for the general population. The aim is to prove that since the accident this woman, who was a personal trainer, is performing at below-average levels for her age and profession. The idea is to gain a more objective measure of an accident’s impact on a plaintiff than the usual method of hiring medical experts to observe the person for limited periods of time.
As the litigation lawyer in this case points out in the piece, leveraging personal activity data in court opens a Pandora’s box of options for the field of law. Insurers will be among the first to check in, looking for any evidence of false claims with torrents of subpoenas.
The potential for wearable device data to be disclosed in court cases has already become a point of discussion among lawyers. Some writers on the topic are calling activity trackers personal “black boxes” that can be forced open by discovery in litigation. One lawyer has already claimed to be “lining up clients” who will be using this data to prove claims.
There may be nothing quite as frightening as the prospect of personal injury lawyers and insurance companies with personal data in their hands. But this prospect certainly speaks to the complex implications that come with the tracking and pooling of increasingly intimate kinds of data. You are the cookie now.
The emerging generation of smartwatches and personal trackers will be adding even more personal information, including heart rates, sweat monitors, and more. Apple has already applied for patents for mashing this data to determine user moods and emotional states. Imagine if lawyers got their hands on that sort of data. What happens when we can attach cookies not only to people’s activity and location, but also to their state of mind?