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Heyyy! NICE e-bracelet you've got there ... SHAME if someone were to SUBPOENA it

Court pops open cans of worms and whup-ass in Fitbit case

In what appears to be a legal first, data from a woman's Fitbit tech bracelet will be used in court to argue a case.

The gadget's wearer was a personal trainer before she was hurt in an accident. Her law firm in Canada will use data from her wearable and compare it to data from other women of her age and profession in order to demonstrate the impact her injury has had on her.

Lawyer Simon Muller of McLeod Law in Calgary told Forbes that the data will be just one part of the case being presented, but that "we’re expecting the results to show that her activity level is less, and compromised, as a result of her injury."

He noted: "Prior to this, legal teams representing personal injury cases had to rely on subjective, personally reported data from clients."

The case has potentially enormous implications as wearables like the Fitbit and upcoming Apple Watch start to enter mainstream use.

The data is being used in this case by the plaintiff, but its value is obvious to either side of future lawsuits. If someone is known to have objective data about their personal movement, an insurance company, for example, could subpoena the individual, or device manufacturer, or in fact any company that has access to the data, to hand it over.

In this case, the information will come from analytics firm Vivametrica, which gathers sensor readings from wearables and compares them to the health of the population. The plaintiff will go through an "assessment" period wearing a Fitbit and running the numbers through Vivametrica to see how she compares to other women.

The Fitbit tracks movement to an impressive degree, providing users with feedback on not only their general activity but also their sleep patterns. Other wearables are seeking to provide even more data, such as heart rate, location, speed and a whole wealth of new data.

The issue has already appeared on the radar of the Federal Trade Commission (FTC) which asked Apple for its rules over how it would protect user data when its new Apple Watch is released next year.

The Apple Watch has a built-in heart rate sensor which, along with its accelerometer, and the GPS and Wi‑Fi found in the connecting phone, provides a wealth of data that Apple hopes will fuel a whole new market in health apps.

Apple claims to have written strong rules into its HealthKit developer tools. For example, data cannot be stored in the iCloud; app makers are not allowed to use the data for anything other than "providing health or fitness services"; and all data will be encrypted if taken off the watch or phone.

But with the modern default of apps quickly and simply gathering and analyzing data in order to provide simple services, it is highly likely that such data will be held by third parties who do not have adequate safeguards or a willingness to stand up to subpoena requests.

There are, of course, strict laws across the globe that decide what can be done with individuals' medical information. However, it is far from clear where those laws stands on things such as fitness trackers and the use of data that does not directly relay an individual's health – but could easily be used to build a picture of their activity. When that data could be used to decide legal cases worth millions of dollars, you can be sure that the law will be firmly tested. ®


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