Your Fitbit could tell the truth, the whole truth and nothing but the truth. Personal data from wearable technology is now being used in court

Wearing your alibi (Image: Guido Mieth/Getty)

IN LATE November, a court case in Calgary, Canada, set an unusual record. Lawyers representing a personal trainer injured in an accident were the first to wield data from a wearable device in the courtroom. They planned to use the sluggish activity levels recorded by their client’s Fitbit fitness tracker to prove the lasting effect of her accident.

Evidence gleaned from sources like email, social media and GPS trackers has already become common in trials. Newer tech like wearables and smartphone apps exude an even richer exhaust of information concerning our whereabouts, activities and close contacts. Cases like the one heard in Calgary raise questions about what it means to have this data in the courtroom – and how people could use it to protect themselves in the eyes of the law.

An Android app called Alibi, released a few weeks ago, is designed to help citizens protect themselves in this way. Like a civilian version of the body cameras now worn by many police officers, a smartphone running Alibi discreetly records an hour of location data and audio, as well as photographs of a person’s surroundings. This data is constantly overwritten until a user elects to store the past hour’s cache secretly on their device.


Location data from a fitness tracker could help establish where you were at the time of a crime

It joins a class of several similar apps like Cop Recorder and Police Tape, which send covert records of interactions with authority figures to a central server. Such records could buoy legal claims of workplace harassment, vehicle accidents, or problematic police interactions, writes developer Jeff Myers on the Alibi website: “It gives users the confidence to stand up for themselves in the face of misguided authority or misplaced aggression.”

In fact, a wide variety of cases could benefit from digital evidence garnered by wearables or apps, suggests Tyler Newby, an attorney in San Francisco. “Lawyers, especially plaintiff lawyers, are always creative,” says Newby. “I think the possibilities are limitless.”

For example, activity levels recorded by trackers like Jawbone might be able to show if you were injured at work and how that injury has affected your daily routine. Location data could help establish where you were at the time of a crime, or a sleep tracker could show you were unconscious while it happened. A fast heart rate might support claims that you felt afraid during an assault. Or someone accused of distracted driving – such as the California woman pulled over in 2013 for driving while wearing Google Glass – could go back through their data to show that the device was safely turned off.

“The control of personal data is going to become increasingly important,” says Yves-Alexandre de Montjoye at the Massachusetts Institute of Technology. He works on OpenPDS, a tool that allows people to sift through data from their devices and control how it is accessed by outside programs. OpenPDS isn’t specifically intended for legal use: it helps ordinary people better understand what personal information is on the record.

For the most part data is treated equally in court, whether it comes from a computer, a Fitbit or an app. Lawyers must prove that the information is authentic and relevant to the case – a relatively low bar to clear. An expert may be called to demonstrate that the device was working and that the data does show what it claims to. In the Fitbit case, the client’s data is being crunched by a third party, the Calgary analytics firm Vivametrica.

This kind of data is not infallible, of course. A smartphone could be handed off to another person – just because the device was at home doesn’t mean that’s where you were – or a fitness tracker could be jostled to fabricate movement.

There’s also the potential problem of software glitches. Take Scott Peterson’s high-profile murder trial in 2004. Police GPS trackers were used as evidence despite some glitches in the data, including one that indicated Peterson had been driving at thousands of miles an hour.

“In English and US jurisprudence, the members of the judiciary accept that the cost of proving everything is prohibitive,” says Stephen Mason, a barrister in Bedfordshire, UK. The outcome is instead left to a combination of expert testimony and supporting low-tech evidence. After that, it’s up to the jury to decide.

This article appeared in print under the headline “It’s a Fitbit, Your Honour”