Fitness trackers can be used against you in a court of law

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ATLANTA — It counts your steps, your heart rate, and even how well you sleep at night.

Tens of millions of people have bought into the fitness trend, wearing a Fitbit or similar wearable technology device to track their every move.

But did you know you aren’t the only one with access to that fitness tracker information? And it could be used against you in a court of law?

Your fitness tracker may be spying on you

‘This is the same as the black box data you would get on a car or a truck or an airplane,’ said Atlanta attorney Bruce Hagen, whose firm specializes in cases involving bike crashes.

Hagen started asking clients for their activity data about a year ago.

‘This information doesn’t lie, right? So what’s on your Fitbit? That’s what you did,’ said Hagen.

The information is supposed to be your own, all conveniently worn around your wrist to help improve your fitness.

It can also help prove how active you were before an injury.

In a case in Canada, a personal trainer is using her own Fitbit data to prove how her life changed after an accident. A third-party company is comparing her activity level to the public average for a woman of her age and job.

‘It does reinforce somebody’s honesty and it can also catch them in a lie if it comes to that,’ said Hagen.

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Read more: Fitbits are now mandatory on this campus

That’s exactly what it did in one of the first known criminal cases to use it, in rural Pennsylvania. WSB-TV Reporter Jodie Fleischer traveled to meet the law enforcement officers who thought to use it.

‘It’s definitely not something you would associate day in and day out with happening in this neck of the woods,’ said East Lampeter Police Chief John Bowman.

Tucked away in the middle of Amish country, a Florida woman was staying at her boss’ house, and called 911 to report a sexual assault by an unknown intruder.

‘That’s pretty alarming to a community,’ said District Attorney Craig Stedman.

Especially when it didn’t really happen.

Detective Chris Jones already doubted the woman’s story for other reasons, and when he took her Fitbit into evidence, he knew he could prove it.

‘If you are telling the truth, then you have nothing to worry about with that information,’ said Jones.

He asked for her login and password, but he didn’t have to.

‘If they don’t consent to it, we have to have probable cause to take it from them,’ said Stedman, ‘In this case, we could have gotten a search warrant.’ 

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When they saw her activity data, they knew he had a different kind of crime.

‘She said she had gone to bed and there I think were around 1,000 steps after the time she went to bed and before she called the police,’ recalled Stedman.

He charged her with filing a false report and tampering with evidence.

He says her Fitbit offered tangible data to prove she was busy staging the crime scene at the time she said she’d been sleeping.

Her attorney declined to comment, saying she just wants to put the whole situation behind her.

‘That’s the kind of thing that juries respond to,’ said Stedman. ‘We know we can win cases when we get this kind of evidence.’

He knows it won’t work in every situation, but there will also be lots of relevant cases, involving injuries, accidents or insurance claims.

Those are Atlanta attorney Chris Simon’s specialty.

Read more: DNA may determine whether you’re an early or late riser

‘If you are allowing it to be written down, it is accessible to somebody in the future,’ said Simon. ‘We are voluntarily allowing people to track our every movement, and that’s scary.’

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He says attorneys would still have to prove the data is accurate and who was wearing the device.

‘It could save you, or it could go against you,’ said Simon.

Fitbit declined to comment for this story; that’s the brand of wearable technology involved in both of the court cases. On its website, the privacy section promises to keep customers’ data safe and never to sell it. But it does specify that it will disclose data to comply with a valid legal process, like a warrant or subpoena.

Word is spreading through the legal and law enforcement communities.

‘It’s exciting in the sense that we have another tool to help get to the truth,’ said Stedman, ‘That’s what justice should be about.’



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