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Last year, a man was indicted for aggravated arson based on heart rate, cardiac rhythm, and other data obtained from his pacemaker. Another man was charged with murder based, in part, on data collected from his Fitbit. While these cases might sound far-fetched, they may soon be commonplace, particularly with the explosive growth in wearable devices and mobile health applications, which are used by one-fifth and one-third of all U.S. consumers, respectively. See “Patients Want a Heavy Dose of Digital,” Accenture Consulting (2016). The reverberations caused by these technologies will extend far beyond the criminal system. Only last month, the Food and Drug Administration approved a digital pill “embedded with a sensor that can tell doctors whether, and when, patients take their medication.” Pam Belluck, “First Digital Pill Approved to Worries About Biomedical ‘Big Brother,’” N.Y. Times (Nov. 13, 2017) (“the sensor … generates an electrical signal when splashed by stomach fluid … [that] is detected by a Band-Aid-like patch that must be worn on the left rib cage … [that] sends the date and time of pill ingestion and the patient’s activity level via Bluetooth to a cellphone app”).

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