Wearable Technology: The Legal Implications of Data Collection

Wearable Technology: The Legal Implications of Data Collection

The wearable tech market has quickly become a significant global industry and the market appears ripe for future growth. Some sources predict that the global retail revenue from smart wearable devices will reach the $53 billion mark by 2019, largely driven by an increase in sales of premium smart watches and smart glasses over the next five years. As this technology advances, their capabilities will expand and intrude, raising important questions regarding data collection and the privacy rights of individuals.

Who Owns Data Collected from Wearable Technology?

Heart rate, sleep patterns, calorie intake and location are just a few of the metrics that wearable devices are often programmed to monitor. To determine ownership of this data, the relevant contracts that apply in each particular case play a crucial role.

Data ownership can be determined through employment agreements, contracts with related apps and even collective bargaining agreements (such as that currently employed by the NFL). To date, companies such as Apple have maintained seemingly strong privacy policies regarding the protection of user data, assuring that they will not sell that data to third parties.

However, if Facebook's changing privacy policy is any indication, consumers of wearable tech (especially those who already own the product and would rather not abandon their purchase) have every reason to be worried about the protection of their personal information. Recently Facebook has been on the receiving end of a number of privacy complaints from groups such as the Electronic Privacy Information Centre (EPIC), after retroactively notifying all Facebook members that their information may be sold to third parties.  Of the many complaints made by EPIC, perhaps the most concerning involves an "emotional manipulation study" conducted by Facebook in 2012, where 689,003 users became subjects in a psychological experiment without their consent. There was no mention in Facebook's data use policy of their potential inclusion in the study.

As a result, it is unclear who actually owns this newest form of intangible property. What is clear is that wearable tech companies have line-ups of advertisers and other third parties ready to spend big money on your personal data.


Complicating the Distinction Between Body and Technology

Wearable technology raises another question: when does a device becomes so embedded into the human body that in effect they can be classified as one entity? As wearable technology becomes increasingly intimate and permanent, both the benefits and sacrifices from its use increase substantially.

Consider Sony's SmartWig (which incorporates a navigation system and video functions into wigs) or Prosteus' ingestible digital pills (where health-related sensors are literally inserted into the human body). While these devices allow us to monitor individual's psychological responses at an unprecedented rate, obtaining such data requires that the individual surrender certain privacy rights.

The blurring of the division between body and technology may also play an important role in litigation. In a case before a Canadian court, it was reported that activity data from a fitness tracker will be used as evidence in a personal injury lawsuit. This development is meaningful, despite the plaintiff's consent to use data in this case, because in the future wearable devices may be subpoenaed by courts. Some sources have already expressed their excitement toward technology's gold mine of potentially relevant electronically stored information for use in litigation.


Looking Forward

In 1984, Apple introduced the Macintosh with its iconic commercial alluding to George Orwell's novel, Nineteen Eighty-Four. Ironically, Apple's innovations, along with several other devices constituting wearable technology market, have spawned a culture resembling the dystopia which that commercial critiqued. We may not be ruled by giant screens, but the tiny devices that we carry with us everywhere we go represent a similarly profound threat to our privacy and security.

Although I enthusiastically endorse the rapid development of technology and eagerly await the capabilities of new innovation in this growing industry, I fear that technology is moving at a pace that the law cannot keep up with. Ultimately, manufacturers and designers of wearable technology products must balance the privacy of individuals with an interest in the evolution of technology. In the event that a company chooses development over consumer security, it is imperative that consumers understand the privacy issues at stake before getting decked out in 2015's newest trends in wearable technology.


Michael Cara is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.