Fitness tracker data used in court cases

Attorney: Device users should be concerned about privacy

JACKSONVILLE, Fla. – Fitness trackers like Fitbit, Garmin, and Jawbone are among the hottest gadgets on the markets right now, and are riding a wave of consumer popularity with sales exploding.  But by tracking your steps and your sleep, are you also giving up your right to privacy?

Nationally, the tech battle over consumer privacy is heating up. Just last week, Apple announced in an open letter to consumers that it would fight a court order to help the FBI hack into a known terrorist's cell phone. Later, Google, Facebook, and Twitter came to Apple's defense.

READ MORE: Apple CEO Tim Cook's letter to customers |
Statement from FBI Director James Comey

We discovered fitness trackers have also already been brought into the courtroom as evidence including a case against a Florida woman.

Fitness trackers can capture every detail about how we spend our day and how our body performs along the way. That data could prove very valuable to police, attorneys, insurance companies and possibly others.

From your wake time to your bed time and all your steps and heart beats in between, fitness tracker fans are logging real-time data about their every move and with some devices, even logging their GPS coordinates. But, will you regret that quest for steps?

“Everything that you do electronically leaves a small bread trail if you will,” says St. Johns County Sheriff's Office Cmdr. Chuck Mulligan. He said his office hasn't used a fitness tracker in a criminal investigation, yet. However, the agency's forensics team already pulls clues from cell phones, computers and other electronics so he says wearable fitness trackers fit right in. “Obviously electronic devices and what they mean for criminal investigations is improving all the time and it certainly is an avenue that allows us to further prosecutions.”

News4Jax found two cases where fitness trackers have already popped up in the courtroom, including one involving a Florida woman. Nina Risley, from St. Petersburg, traveled to Pennsylvania and was staying at her boss' home when police say she called to report she was raped by an unknown intruder.

According to the police report, officers obtained her Fitbit Surge device and "the Fitbit device showed that Nina was awake and walking around the entire night prior to the incident and did not go to bed as reported"
Police believe the steps recorded on her device prove Nina was awake and staging the crime scene instead of being asleep and ripped out of bed like she claimed. She was later charged with making a false report and tampering with evidence.

The second case is the opposite end of the spectrum. A Canadian woman was injured in an accident, more than five years ago before fitness trackers were on the market.  Her lawyer is trying to have her Fitbit data entered into evidence to show her activity level now is low for a person her age, in an effort to prove her personal injury case.

Local defense attorney Janet Johnson says these cases spell out "liar beware".

“You better be telling the truth because this FitBit is going to blow your story," Johnson says.

Johnson expects fitness trackers to join the long list of legal debates involving technology litigated up the the highest levels, possibly even the Supreme Court one day.

Asked if the American people be worried about their privacy," Johnson responded: "The short answer is yes. We don't have privacy.”

Technology giants Apple, Google, Facebook and Twitter are banding together trying to show consumers they will fight for customers. This comes as a court ordered Apple to help the FBI and create what Apple calls a “back door” to hack a known terrorist cell phone connected to the San Bernardino mass shooting.  It's a capability Apple says it doesn't have now, and fears if forced to create one and use it, that it would set a dangerous precedent for consumers.

“It's big brother," explained Johnson. “Tim Cook from Apple has to look like he's protecting his users so whether or not Apple thinks they're going to win that battle, the corporations have an interest in telling their subscribers and users we're going to fight to keep your information private.”

It's a legal and policy fight that's just beginning, and where consumers end up in the battle is largely unknown.

“If you are worried about your privacy and you can do without knowing how many steps you've walked, you may want to forego the FitBit," Johnson said.

Additionally, wearable trackers are also now leaking data.  A Canadian research non-profit tested nine different fitness trackers and found only one passed the test for privacy and security: the Apple Watch.

READ MORE: Fitness tracker data privacy study

All of the others were found to have vulnerabilities, allowing third parties like shopping malls to track shoppers fitness trackers and mine and sell that data to companies interested in selling fitness data, or to insurance companies, authorities, courts of law or even potentially to criminals looking to steal that data.

Fitbit posts its privacy policy on its website:

We pledge to respect your privacy, to be transparent about our data practices, to keep your data safe, to never sell your personal data, to let you decide how your information is shared, and to only collect data that helps us improve our products and services.