The debut of the Apple Watch in fall 2014 may mark a watershed moment not only in the technology industry, but also in the areas of privacy and health law. The technology embedded in the watch—and in competing devices, such as Fitbit and Jawbone—effectively shifts health care from the physical to the remote, and in the process creates a mechanism for the online collection of highly sensitive health information. The benefits are evident: Each device provides users with the ability to track their steps and calories burned throughout the day and to record their sleep history. As a general rule, the applications request the entry of detailed personal information such as age, height, weight, heart rate, and the users’ residence, and also require the permissioning of geo-location in order to track a user’s activity, thus recording his or her whereabouts—thereby creating data that advertisers, health plans, insurance companies and cyber criminals would clearly love to have. What happens to all this data on how and where we move about all day and night? At least for the moment, there is no clear legislative or judicial framework that squarely addresses all of the concerns raised by the development of these devices.
Use of Health Information
Some of the legal implications of the collection and use of health information have become clear in a recent Canadian court case involving the health activities of a Fitbit user. The case concerns a personal injury claim in which the plaintiff’s attorneys used data collected by a Fitbit wristband as evidence of their assertion that the plaintiff’s physical activities diminished since the accident in which she was allegedly injured. The case not only presents issues concerning the admissibility of such evidence, but also opens up the related potential issue of when the disclosure of such information can be compelled for the contrary purpose of undermining a plaintiff’s or witnesses’ statements regarding their physical activities and health status.
