It's National Obesity Day, But I am Ditching My Fitbit

  An article published by the Catholic University Journal of Law and Technology proclaims, "Technology is Killing Our Opportunity to Lie." It's true.

The Washington Post yesterday published an extraordinary account of how a widower became a suspect in his wife's murder when her Fitbit, along with IP addresses from his email and data from his home security system, tore holes in his alibi. The article quotes District of Columbia law professor Andrew Furgueson as noting, "Americans are just waking up to the fact that their smart devices are going to snitch on them."

The Consumer Technology Association reports that wearables are expected to increase nine percent in 2017 to 48 million units, driving a $5.6B market. Smart home technology is expected to experience a mind-blowing 50 percent increase to 27M unites and a whopping 48 percent increase in earnings to $3.3B.

But, all of this comes at a price for prospective criminals whose dastardly deeds may be undone when their devices rat them out. The Washington Post cites an Ohio case in which a man claimed he was asleep when his house caught fire. He was later charged with arson and insurance fraud when his pacemaker revealed "heart rate and cardiac rhythms [that] indicated the man was awake when he claimed he was sleeping." 

The United States Supreme Court issued a landmark ruling several years (Riley v. California) ago which affirmed that law enforcement must obtain a search warrant before searching smart phones for data. The Court distinguished between other instances in which an arrestee and his immediate surroundings may be searched without a warrant, and why a smart phone is not included in that exemption from Fourth Amendment protections. Dinstinguishing why a phone was different than a crumpled cigarette package that was found to contain 14 capsules of heroin, Chief Justice John Roberts explained,

The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information - an address, a note, a prescription, a bank statement, a video - that reveal much more in combination than any isolated record. Second, a cell phone's capacity allows even just one type of information to convey far more than previously possible. The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.

The burgeoning growth of wearables is generating new questions. Many devices upload information to third-party servers in the cloud, and courts have held for years that sharing otherwise-private information with third parties eviscerates and expectation of privacy. Whether this standard applies to fitness, smart home or other services will likely be debated as connected devices become more intertwined with more people. 

Learn more about the intersection of technology and policy at the NTCA Legal Seminar, Nashville, November 12-14, 2017.



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