by John G. Browning
Americans are more “connected” than ever- at least to the Internet. A 2015 study by Deloitte revealed that collectively we look at our smartphones around 8 billion times per day; when accounting for all age groups, that translates to about 46 times per day, per person. And the number of web-enabled devices is projected to almost triple in the next few years, from 13.4 billion in 2015 to 38.5 billion by 2020. Consumers are filling their homes with everything from “smart” kettles and refrigerators to interconnected lightbulbs, toothbrush, baby monitors, and medical devices. But along with the explosive growth of the “Internet of Things” (or IoT) and the unprecedented information-gathering by such devices have come dramatic new concerns about consumer privacy, data security, and the potential uses for such data in litigation.
It is already happening, as recent headlines have demonstrated. In February, police in Ohio charged 59-year-old Ross Compton with aggravated arson and insurance fraud after data from his pacemaker was inconsistent with his story about his physical activity when his house burned down. Compton claimed that he had frantically packed some belongings, broken the glass of a bedroom window to get out and scrambled to escape. But a cardiologist reviewed the heart monitor’s data (obtained through a warrant), and concluded that Compton’s account was “highly improbable.” Earlier this year, Arkansas police sought help in solving a murder from an unusual source: the Amazon Echo, the popular web-connected wireless speaker that, upon voice command, can provide music and information on a variety of topics. As users know, “Alexa” is always listening through 7 built-in microphones, and when a voice command is made it also records under 60 seconds of sound from its surroundings (streaming this audio into the cloud)—including a fraction of a second before its “wake word.” Prosecutors sought this data to aid in their case against Andrew Bates, who was charged with first-degree murder after his friend Victor Collins was found strangled and drowned in Bates’ hot tub. They believed that Bates’ Amazon Echo may have recorded incriminating audio, such as the sounds of an argument or struggle; Amazon, however, has resisted turning over the data, citing user privacy.
Wearable technology, including activity/fitness trackers like Fitbit or Apple’s “smartwatch,” has also helped usher in the IoT revolution. Devices like the Fitbit, Jawbone, or Nike Fuelband monitor and store a whole host of data about one’s physical condition, location, heart rate, exertion level, and even sleep patterns. This digital trove of insight into the health and lifestyle of the device’s wearer can have considerable value for enterprising attorneys in virtually any kind of case in which an individual’s physical condition might be relevant. In late 2014, a Canadian personal injury case demonstrated this fact when the attorney for the plaintiff (a personal trainer) used data from her Fitbit to support his contention that her post-injury activity levels were well below the norm. The attorney used an analytics company, Vivmetrica to analyze and compare the plaintiff’s information with the general population to show how her physical condition had been compromised as a result of her injuries.
Even apps are figuring into litigation. In a 2016 personal injury case in Georgia, Maynard v. McGee, the plaintiff blamed not only the teenage driver who struck him, but also Snapchat. The plaintiff alleged that, motivated by Snapchat’s “speed filter” that gives digital “trophies” for driving at high speeds, the defendant driver was going 107 mph at the time of the accident. While Snapchat was dismissed as a defendant, evidence from its use may still be introduced as evidence.
Litigators need to be aware of the gold mine of information that awaits, thanks to the IoT, but they also need to know about potential problems. Evidence preservation issues will arise; since a user can easily delete or modify data from wearable devices, litigation hold letters will be a crucial tool if data from wearable technology factors into a case. Retrieval and production of data can also pose challenges. Lawyers must determine if the data resides on the device itself, or if it gathers and stores it to the cloud or on a remote server maintained by a manufacturer. Finally, admission of the data as evidence poses any number of questions, from relevance to reliability to the expectation of privacy to authentication concerns. In addressing these challenges, courts will need to apply laws that never envisioned such technology—and judges do not get to ask “Alexa” for help.
John G. Browning is a shareholder at Passman & Jones. He can be reached at firstname.lastname@example.org