Fenwick & West privacy and information security co-chair Tyler Newby was prominently featured in a Daily Journal article concerning the potential for wearables to be subpoenaed in court as evidence against their users.
Newby told the Daily Journal that this maneuver was already a reality in criminal cases because warrants make getting this information easier but that he expects similar cases will soon be taken up in civil cases as well.
Less vulnerable to a subpoena, Newby said, are the companies that manufacture the devices and aggregate the data, which can argue that they should be considered an electronic communication service or a remote computing service covered under the Electronics Communications Privacy Act.
“If I’m the service provider I think there’s a pretty strong argument that this type of data is the content of a communication. A litigant can’t go to Google or Microsoft or Yahoo and say ‘here’s a subpoena, turn over all the email relevant to this lawsuit,’” Newby said.
Newby elaborated that the same protections don’t extend to the device itself or to its wearer, making this a much easier path toward obtaining the data for a court case.
The flip side is that litigants can also volunteer to share their data to bolster their cases. Said Newby, “That may be the way it’s going to come out, more often than not.”
He cautioned, however, that the data itself might have limited value, or be vulnerable to distortion, either because users forget to use the device regularly or might employ an accomplice to wear the device in their place, skewing the activity data the device records.
Another limitation, Newby added, is that the data is also open to misinterpretation. “I haven’t been on my bike in the last two weeks, not because I’ve been injured, but because its been raining.”