Who’s Scared of Fitbit?

A couple people sent me links to this story in the Atlantic.  The story reports that a plaintiff in Canada is planning to introduce evidence from Fitbit (a wearable activity tracking device) “to show that her activity levels [after an injury] are still lower than the baseline for someone of her age and profession to show that she deserves compensation.”

The story places this in a narrative of the increasing pressure technology is placing on privacy.  But as the story candidly notes, it doesn’t really fit that narrative since the plaintiff is offering the evidence of her own Fitbit data.  And even if it were the defendant offering the Fitbit data to show that a plaintiff had not been injured, I am not sure it makes sense to assume that such uses of technology are ominous or even particularly unsettling.

First some legal pieces.

The story suggests that there are lots of unanswered constitutional questions, but I think the answers are fairly clear.

“The law provides very few answers to these questions. In America, the Fifth Amendment protects the right against self-incrimination and the Sixth Amendment provides the right in criminal prosecutions ‘to be confronted with the witnesses’ against you. Canadian courts have similar safeguards. Yet with wearables, who is the witness? The device? Your body? The service provider? Or the analytics algorithm operated by a third party?” 

I don’t see any Sixth Amendment issue here.  If the prosecution introduced data from Fitbit in a criminal case then, to answer the author’s question, the device is the “witness” and the defendant would have the same right to confrontation that he or she would possess if the evidence came from a radar gun, watch or thermometer, which is to say, none.  You can, of course, put on evidence that the device is unreliable, but if you want to cross-examine the radar gun or Fitbit bracelet(?), have at it.

“It’s unclear how courts will handle the possibility of quantified self-incrimination.” 

The Fifth Amendment protects against compelled self-incrimination and the Supremes have long held that the compelling and self-incrimination have to occur together.  If you post a picture on Facebook syphoning gas from a police car (true story) and the police get a warrant to see the page and then use the photo at trial, there is no compelled self-incrimination because you incriminated yourself voluntarily – same reasoning applies if you incriminate yourself by wearing Fitbit around and the police lawfully get access to the Fitbit data.  Unless the govt. compels you to wear the Fitbit (Mayor Bloomberg?), there is no Fifth Amendment violation.

There is a Rule 702 issue, since the relevance of the data is going to depend on expert testimony, that will presumably explain that the plaintiff’s readings are lower than some baseline: “The lawyers are relying on an analytics company called Vivametrica, which compares individual data to the general population by using ‘industry and public research.’”  Rule 702 “reliability” might be where the real legal action is in this case.

But back to the big picture issues raised by this Fitbit thing.  The Article says:  “Ultimately, the Fitbit case may be just one step in a much bigger shift toward a data-driven regime of ‘truth.’”  Yes, I think that is right.   And I don’t think it sounds that ominous.  I value privacy, but I also think it is important that our justice system is and strives to be “data-driven.”  After all, non-data driven justice systems are as much a threat to liberty as the privacy problems that come from finding out what’s in your Fitbit.

H/T Andrew Ferguson (@JuryDutyMatters) and Chris Griffin