Earlier this week, we wrote about how the government can lawfully compel a person to unlock their smart phone with the Touch ID feature (if the feature is enabled). Recently, Fitbit has been in the news because the popular fitness tracker device is being used as evidence in a Canadian civil court in a personal injury lawsuit. According to Forbes, in this landmark case, Fitbit data was volunteered by the owner of the device (the plaintiff) to support a claim that her activity level had decreased following an alleged injury.
This, one again, raises issues about the juncture between modern technology and consumers’ Fifth Amendment rights. So far, it appears that Fitbit data, or data from other wearable devices, have not been subpoenaed or used against the will of the device’s owner in the United States (or Canada). However, this case has opened Pandora’s box to the question of technology and self-incrimination.
What does this Mean for Tech Users?
Let’s say that you are accused of robbing a bank. There is no evidence against you, and your alibi is that you were at home taking a nap at the time of the crime. A judge may be able to compel you to produce your wearable technology to account for your heart rate at the time of the crime. In this case, elevated heart rate would equal incrimination.
Some savvy prosecutor or plaintiff’s attorney may attempt to compel the production of wearable technology data in the near future. Using the analysis from the previous blog post on this topic, the pertinent question will be whether the production of data from one’s wearable technology is a “testimonial communication.” If producing one’s Fitbit, for instance, is not a testimonial communication, than the wearer may invoke her Fifth Amendment privilege against self-incrimination to stop production (or use) of the data in court.