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

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 …

  1. Deltics

    Not the story it first appears to be...

    Y'r 'onor, my physical activity has been impaired and to provie this I will wear a device that will measure my activity during a period when I am aware that my activity is being measured, and the results of monitoring my activity during this period, as taken by this objective device, shall support my claim of impairment.

    I promise not to alter my activity whilst wearing the device during the specified period in order to subjectively alter the results of the objective assessment.

    Honest injun.

    It's not as if the data was collected at a time when the interested party was not aware and therefore not able to alter their behaviour to suit their claim.

    It's a complete and utter non-story in that respect and highly unlikely to lead to such information being demanded in retrospect by a respondent in a case given that this establishes absolutely no precedent in respect of obtaining historical data from another party without their consent.

    1. Eddy Ito

      Re: Not the story it first appears to be...

      Uhhh, you got 'em big heap axe grind, kemo slobby. Wear down fast keep talk, hav' mini-hatchet left.

      Honest paleface. Ha ha, git it? No such thing, kemo slobby.

      The thing is it does open a new bucket-o-chicken because if the court allows it then it will equally have to allow the opposite where someone out on disability is actually off water skiing in Miami. If it's known that they have such a device then it seems perfectly reasonable for someone to get and order for the records and prove one way or another that it is a fraudulent disability claim. Juries may not always be the brightest bulbs on the tree but they often have a good nose to smell when someone is trying to game them. It's the judge who makes the precedent by allowing the data as evidence and it's up to the jury to call bullshit. Something they are likely to do in this case but not in the reverse.

      1. Deltics

        Re: Not the story it first appears to be...

        Allowing data to be voluntarily submitted as evidence is a completely different proposition than allowing data to be seized and used against the objection of the person to whom the data relates.

        Precedent *means* precedent.

        If the yet-to-be-created-data-voluntarily-submitted is allowed in this case then it might open the door for a claimant to ASK to subpoena someone else's existing-data-compelled-to-be-presented-against-objections and force it to be presented as evidence, but the judge in that case will not look at this request and conclude that the former opens the door for the latter.

        Which is not to say that they might not conclude that the latter request should also be granted, only that the one does not form a precedent for the other. Not one little bit.

        But the bigger point is that the yet-to-be-create-data-voluntarily-submitted in this case is utterly unreliable since the claimant is able - should they be so minded - to manipulate that data to support their claim. It isn't "evidence" of impairment any more than any written statement merely claiming impairment is.

    2. Ken Y-N

      ...and I further promise

      Not to give it to my granny for her to wear.

    3. Jason Bloomberg Silver badge
      Headmaster

      Re: Not the story it first appears to be...

      I don't see the problem either; it's no different to subpoenaing phone records, recordings of conversation or obtaining any other evidence as relates to the case.

      There is a necessity to prove or have agreed that whatever is subpoenaed is actually admissible and evidence but that's no different to any electronic, hearsay or circumstantial evidence.

      "Evidence is evidence" as far as the courts in the UK see things though it is different in other jurisdictions. We don't have such American nonsense that a gun used in a crime found in the defendant's dustbin cannot be presented as evidence because there was no warrant to look in the bin.

  2. Queasy Rider

    It may be illegal but...

    I can envision insurers, through shell companies, buying into these fitness tracker companies to get at the data they might collect, "just for statistical purposes". Yeah right.

    1. dieselbug

      Re: It may be illegal but...

      Just like those pesky snapshot devices the auto insurers are pitching these days.

  3. imanidiot Silver badge

    And thats the end of the fitness tracker market then

    Who would want to buy/wear such a device daily if it means your daily pattern of activity is available to many third parties, and probably (as queasy rider points out) available to insurers and law-enforcement, whether they need it or not.

    1. Anonymous Coward
      Anonymous Coward

      Re: And thats the end of the fitness tracker market then

      There's plenty of devices which don't upload to the web.

      1. imanidiot Silver badge

        Re: And thats the end of the fitness tracker market then

        The device itself might not, but it's most likely linked to a smartphone or desktop app on an internet connected device. And this might "send anonymous data for product improvement".

    2. Mage Silver badge
      Paris Hilton

      Re: And thats the end of the fitness tracker market then

      Oh I don't know.

      Look how many people use Chrome, iOS, don't block 3rd party sites using a browser plug-in, use a "points" Store Loyalty card, Android phone registered to their Google account (I never buy ANYTHING off Playstore, nor enable Mobile data or WiFi, perversely I use it as a phone, MP3 player, camera, jotter only connecting via USB storage mode).

      Icon represents Tech Expertise of most people.

    3. Robert Helpmann??
      Childcatcher

      Re: And thats the end of the fitness tracker market then

      Who would want to buy/wear such a device daily if it means...

      Because they are not being told that up front and many people live in denial. It's not like FB or Google (which FitBit uses) go out of their way to let you know the extent they intrude upon your privacy. Meanwhile, people by the millions willingly give them access to all sorts of personal info. Too, the marketing for FitBit pushes points about sleep apnea but not so much on how your personal data is transferred, archive, encrypted, sold. I am a bit disappointed, though, as I had predicted the first time FitBit would pop up in court would be for a divorce case.

      As a simple rule, if the data leaves your device (any device), it will be harvested and used by at least one other party.

  4. Anonymous Coward
    Anonymous Coward

    Such information will weed out the fakers such as the incapacity benefit claiming karate teachers from Stoke on Trent.

    1. Not That Andrew
      Mushroom

      Yes, because everyone claiming incapacity benefits is really teaching karate, water-skiing in Australia and golfing semi-professionally. [/sarcasm]

  5. cs94njw

    Oh God.... and these days if you want cheap car insurance you fit a GPS tracker to your car...

    ... are life insurance/travel insurance people going to insist you wear them just in case you claim!? :(

  6. Don Dumb
    Alert

    It is open source? And will justice will depend on the device?

    I seem to remember that red light camera tickets being contested on the grounds that as the software in the particular gatso camera was not available to be viewed by the court (it wasn't open source and the company wasn't willing to share the source with the court) then the conviction couldn't stand as it violated the principle that "the defendant and the court needs to be able to see the method by upon which the accusation is based".*

    If the devices in our possession are used by and against us in legal proceedings, it surely won't be long before scrutiny of the very device itself becomes key to the verdict. Can't imagine Apple being too keen to provide its source code to comply with a court supoena to validate the evidence that is being attempted to be extracted from its watch in a low level civil action.

    * - Florida seems to spring to mind and I don't know if the defence was successful.

  7. Dogsauce

    My bike crash just outside work last year (thrown over the front after hitting a pothole at 20mph) was tracked on Strava, including the trip to hospital in an ambulance. This at least helped me piece together some of what happened and work out how long I was unconscious for.

    I can see stuff like this (and gopro footage) being subpoenaed by accident investigators in future, although it's also useful for more vulnerable users proving others at fault, or for snitching on red-light jumping motorists.

    1. Anonymous Coward
      Anonymous Coward

      See? Going that slow is dangerous. If you'd been doing 50, you'd have skimmed right over it. Who says speed is always bad?

      Hope you get it sorted - the council are liable for road maintenance, and you can sue.

      1. imanidiot Silver badge

        You can only sue if you can prove the council has received sufficient warning about the pot-hole being there. In all other cases they will simply claim "we have x thousand yards of road to maintain, this pothole was not there at our last inspection x days ago. We have not received any warning from anyone else" A judge will then probably go with them on this as a council cannot reasonably be expected to inspect all roads within its district every day.

  8. TeeCee Gold badge
    Happy

    Hmm, I see an angle.....

    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.

    So a few weeks slobbing it on the sofa = bigger payoff. Where do I sign up?

    1. tom dial Silver badge

      Re: Hmm, I see an angle.....

      Aside from that, how the plaintiff compares with others is not the relevant fact. What counts is how the accident changed her capabilities, and unless the new data can be compared with data from before the injury my reaction as a juror would be to pretty much ignore it in favor of relevant testimony about the injury and her actual capabilities before and after it occurred. Bringing in the Fitbit and a statistical analysis of currently collected data seems a flim-flam to put a gloss of science on a claim.

  9. Alistair
    Windows

    I seem to recall

    Dashcams in Russia are popular due to some sort of (insurance/lack of/scam - I'm sure VP will correct me)

    I see that insurance companies are now pushing to put GPS based DTR monitors into cars to "reduce your costs"

    (utter horse shit in any case, its insurance, they are the bastion of "make my money grow at any cost", so rates only ever go up although it does come in handy when you get Tboned by a drunkard at 1 in the afternoon on your way back to work, that is, if you can find a lawyer capable of forcing them to follow the contract that you signed.).

    I have to thank (deity) that we have Government managed healthcare up here, I can see where the American version will go -- your health insurance costs "can be reduced if you wear"..... (and turn in all the data of course) -- which on average will *raise* the costs since

    a) you don't exercise 3 times a day for 20 minutes.

    b) don't walk 10 miles every single day

    c) sit down for more than 20 minutes at a time regularly ...

    d) you drank something that looks like it was coffee more than twice in this 3 month period.

    (etc etc )

    Fitbit, soon to be available with subcutaneous blood chemistry monitoring attachment.

    <sorry I woke up on the cynical side of bed this morning>

    1. Ted Treen

      Re: I seem to recall

      "...<sorry I woke up on the cynical side of bed this morning>..."

      Cynicism is realism.

  10. John 110

    "Wearable used as court evidence, can of worms opened"

    ...and the movement required duly logged...

  11. Haro

    Encryption

    There's no science in this article. First, the standard cheapo fitbit doesn't store much. It goes into the application on your phone. Second, everything is now encrypted, so Google can't reveal it under court order. And nobody can force you to reveal your pass code. This case just has the woman wearing a monitor for a few weeks voluntarily. Just like a heart monitor. It'll be thrown out of court because who wouldn't be a couch potato for money?

    1. Alistair

      Re: Encryption

      Sorry Haro;

      A) where the data is stored is irrelevant to the issue.

      B) its made it into a courtroom as an evidenciary method. (doesn't matter if they toss it or not)

      C) Lawyers always come out ahead.

      This pool of facts makes it relevant to society as a whole ergo my pool of cynical slobber above.

      1. Haro

        Re: Encryption

        It's nothing new. They could strap on a Google Street View Camera and then enter it into evidence. It has nothing to do with a Fitbit. Anyway, keep on slobbering, I love it, and the comments are always great.

  12. Matt_payne666

    as mentioned, if your young and ant cheap car insurance you have a GPS tracker fitted...

    if you want to make a massive claim for some sort of disability, then wear a tracker... it can be fooled, but if you are forced to wear it for a month or so it will be hard to fool it all the time...

    It could have a positive effect on weeding out the false claimers, it could also seal the fate of genuine claiments that happen to be just the right (wrong) side of what someone classes as fit.

    In this womans case - if I was her and the claim was genuine, I would be happy to offer up my historical data, along with current data which showed that I wasn't as able as I used to be - to be taken into consideration to assist my claim, but then I am an honest person...

  13. Morrie Wyatt

    Is it only me?

    That sees "Healthkit" and reads Heathkit?

    Or am I just showing my age.

  14. Anonymous Coward
    Anonymous Coward

    Nice what?

    Kieren, for fuck's sake, could you please fucking explain what the fucking hell a fucking fibtit, or whatever the fuck it's called, is? That's exactly what I was trying to find out when I clicked on the article. Please don't make me fucking look it up to find out if I am interested on reading the rest of your article or not.

    People make fun of the Financial Times when they write things like "And blah blah Ford Motors, a car manufacturer, blah blah", but it doesn't really cost much to insert a brief description for those who are not fully au fait with the latest fashionable start-up trends, does it?

  15. Alan Denman

    A niche niche product

    People really want GPS too, so what is the point of this being for double niche sporty type.

    BTW, the lynch mob press OTT castigated(white lies) the Moto 360 etc for battery life so much Tim had to show everyone the recipe he had Cooked for his iWatch,

    'Awful battery life'

POST COMMENT House rules

Not a member of The Register? Create a new account here.

  • Enter your comment

  • Add an icon

Anonymous cowards cannot choose their icon

Biting the hand that feeds IT © 1998–2021