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’s 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; Although Amazon initially resisted turning over data, citing user privacy, it ultimately relented.

Amazon’s objections were grounded in the First Amendment and they didn’t site much authority. Would it have fared better with a Fourth Amendment argument? After all, to have standing to assert a Fourth Amendment claim to protection, there must be a reasonable expectation of privacy. When it comes to devices like the Amazon Echo, or other smart devices that link to our phones, calendars, notes, music libraries, etc., it would seem logical that a certain expectation of privacy exists. But in this era of sharing all kinds of data about ourselves, how far does that expectation of privacy extend? Still, the Framers sought to safeguard the right of a person to be secure in his or her “effects” against unreasonable searches and seizures. With devices that are supposed to improve our home and make our lives easier, it seems reasonable to consider them as “effects” that we don’t want rendering us vulnerable.

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.

Two other cases illustrate the compelling power of data from wearable devices. In 2009, Brentwood, California doctor Christopher Thompson was on trial for a “road rage” incident in which he drove aggressively around two bicyclists, stopping his car suddenly in from of them and causing serious injuries. Dr. Thompson claims that after the cyclists flipped him off, he had stopped his car only to take a photo to identify them later. But prosecutors introduced evidence from the cyclist’s GPS devices that confirmed that they were traveling at 30 miles per hour, and that Thompson could have easily passed them. Thompson was convicted of assault and sentenced to 5 years in prison.

An even more recent incident illustrates how individuals can be hoisted on their own technological petard. New York food writer and competitive runner Jane Seo probably thought she has impressed everyone with her second-place finish in the Fort Lauderdale Half Marathon in February 2017. She proudly posted post-race photos of herself with the silver medal on social media. But something struck Derek Murphy, a race blogger and “marathon investigator” from Ohio, as odd: Seo’s miles for the second half of the race were actually faster than in the first half. He then turned to Seo’s account on Strava, a social media site where runners and cyclists post their times. Although Seo had posted her time, distance, and pace, it had been manually entered – not automatically from her GPS data. Seo posted more data later that day, but when Murphy studied this posting, timing data from it indicated the “run” had actually taken place long after the race was over – and at a pace more consistent with a bike ride than a runner’s cadence. Finally, Murphy studied high-resolution close-ups of the Garmin Fitness tracker on Seo’s wrist in the post-race photos. It showed the proper time, but incorrect mileage for a half-marathon (11.65 total miles), indicating that 1-1 ½ miles were cut. After Murphy went public with his investigation, Seo admitted in an Instagram post that she had “cut the course,” making a “horrible choice” by not disqualifying herself and then trying to cover her tracks by biking over the original route. Her completion time has since been deleted from the race’s results page, and Seo has since disabled her social media accounts.

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 don’t get to ask “Alexa” for help.

 

John G. Browning is a shareholder at Passman & Jones in Dallas, Texas, who has over 26 years of experience in trying cases. His experience encompasses a broad range of civil litigation, including personal injury, product liability, premises liability, professional liability, commercial litigation, employment and trade secrets cases, media law, and intellectual property litigation. Mr. Browning is also an award-winning legal writer and the author of the books "The Lawyer’s Guide to Social Networking: Understanding Social Media’s Impact on the Law" and “Social Media Litigation Practice Guide." He is a Charter Fellow of the Litigation Counsel of America.