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What Your FitBit Can Say About You… In Court

Every day we share a tremendous amount of data without even knowing it, our wearable technology is no exception. In a recent Connecticut case, one man found this out the hard way after his deceased wife’s FitBit busted his alibi wide open and left him facing murder charges and $1M bail.

Richard and Connie Dabate lived in the small town of Ellington. After Connie was found shot to death in their basement, Richard told the police a story of how a masked man broke into their house. He claimed that after a vicious fight with the intruder, the man zip-tied him to a chair, stole his wallet and credit cards, slashed him across the face, then went down to the basement and murdered his wife.

However, Connie’s FitBit told a very different story. After looking at the data recorded on the device, the GPS data tracked by Ms. Dabate’s FitBit showed that during the time Mr. Dabate claimed he was struggling with the masked intruder Ms. Dabate had casually strolled 1,217 feet all throughout the house.

This evidence, along with a few other inconsistencies, harpooned Mr. Dabate’s alibi.  It also represents one of the earlier cases in something we will likely see much more of in the future–wearable technology testifying for or against its wearer.

FitBitWhat is a FitBit?

So first and foremost, for those unfamiliar let’s explain exactly what FitBits and wearable technology is.  A FitBit is a worn device which records your heartbeats, sleep schedules, location, distance traveled, and more.  It then transfers all this information to a cloud and organizes the information into digestible trends and data points for you to log into an account and track your health and progress.  You

They are the tip of the iceberg in a trend of wearable technology (a catch-all term for data enabled devices you wear on your body) from Google Glass and Google Watch to other fitness devices similar to the FitBit such as Garmin’s Vivofit.

Your FitBit Used Against You

You can see how the information stored in a FitBit, where you are, when you were there, how high your heart rate was, whether or not you were asleep, could be relevant evidence in either a criminal or a civil case.  It could kill an alibi or make it ironclad.

Mr. Dabate’s case is one of the earliest to use a FitBit in such a manner, but not the only recent case to take advantage of the data stored on a wearable.  In Pennsylvania, a Ms. Jeannine Risley got in trouble after her FitBit disproved a claim she made to the police that she had been raped.  Ms. Risley told authorities that an unknown man had pulled her from her bed and raped her in her bathroom. However, after the FitBit she claimed was lost in the attack was found in her room it revealed that she had been walking around the house the entire night. This, along with other evidence, lead to criminal false reporting charges  being brought against her. It’s worth noting here that, while this is an example of a FitBit being used as evidence, false reporting of rape is an incredibly rare occurrence as opposed to instances of genuine rape and sexual assault.

In Canada, a FitBit has also been used to establish how much less active a plaintiff in a personal injury case was after their injury than before. While this case is not out of the U.S., the data on a FitBit could easily be used in a similar manner here.

So you see how important this sort of information could be in any number of cases. Wearable devices like Google Glass collect even more information such as the internet searches you perform.  Where this data is relevant to a case, you could certainly be required to produce your FitBit or other wearable to the other side.

Similarly, the data constantly stored in cloud services could also be subpoenaed from the companies storing that data. Google receives countless data subpoenas every year. FitBit’s privacy policy, like nearly every privacy policy on the internet, states that it well release your data as “necessary to comply with a law, regulation, or valid legal process.”

This being said, there are a number of legal obstacles to using this data against you–although none of them are anywhere near foolproof. Many companies, such as Google, are resistant to data subpoenas as they undermine the public’s faith in their services. These companies will occasionally fight such a subpoena in court.

What’s more, this type of data’s relevance–something necessary to establish before the data or device may be required to be produced–can be undermined by challenging the accuracy of the data recorded or whether it was you using the device in the first place. There are also privacy considerations which may protect you against disclosing the data on a wearable device or device itself depending on how important the evidence on it may be to a case against you and which state you live in.

The truth is that the information stored on wearables, especially GPS location information, has so many potential applications in a lawsuit that it is only a matter of time until the use of such information becomes commonplace in both criminal and civil litigation. While you can delete much of the information stored through a FitBit if you wish, it’s more important to understand exactly what data you create and share about yourself on a daily basis. Any day now, that data could be your best friend or your worst enemy in a court case.

Jonathan Lurie


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