The Body’s ‘Black Box’

Wearable technology is something that has moved from the realm of science fiction to science fact. For more than a decade, we have been using smart phones and other portable computers in our day-to-day lives. Now, the same technology is becoming wearable on arm-bands and in glasses, often used to keep track of our health and fitness goals. Lawyers working in both privacy law and personal injury are beginning to anticipate the power and importance of this technology as it relates to future insurance claims.

Activity trackers are one important example of this technology. These are high-tech pedometers typically worn on the wrist of the wearer’s non-dominant arm. The devices measure the movement of the wearer’s body. Using wireless technology, the trackers synchronize with mobile phones and personal computers to give the user a running tally of calories burned and steps taken throughout the day.

These trackers are now made by a half-dozen major manufacturers. In a big recent announcement, Apple unveiled an update to the operating system that powers iPhones and iPads – including an application that will monitor users’ heart rates, sleep, weight and blood pressure. Nike’s FuelBand has been on the market since 2012. Meanwhile, competitors like FitBit and Jawbone have designed ‘apps’ for smart phones and tablets to store and conveniently display the data gathered by these trackers.

The question for lawyers and claims handlers is: what significance might these “wearable” technologies play in the context of personal injury claims?

There is a huge digital footprint generated by these devices. Weight loss, weight gain, heart rate, blood pressure, diet, exercise and mood can be diarized by users to help keep track of their health. Certain companies have even launched social networking sites to allow their customers to share fitness goals and their progress with friends and strangers alike.

Without question, wearable technologies will become both cheap and commonplace in the next decade. Even now, these technologies are becoming relevant in the arena of motor vehicle accident claims. According to the Amercian Bar Association, in October 2013 a driver in California wearing ‘Google Glass’ was the world’s first person to be issued a ticket for ‘distracted driving’ while using this device. For those unfamiliar, these high-tech glasses are a wearable computer that projects information onto the driver’s plane of view. The driver was allegedly browsing the Internet while driving.

As wearable technology advances, these devices may truly become the ‘black box’ for the human body, providing incredible insight into the health, lifestyle and behaviour of the wearer. They may be prescribed by physicians as a tool for assisting in healthcare. But what, if any, privacy rights should the wearers of these high-tech devices maintain over this electronic information once the wearer files a personal injury claim?

Even at this early stage, the battle lines between relevance and privacy have been drawn. In Laushway v. Messervey (2014 NSCA 7), Nova Scotia’s Court of Appeal has shed light on how to weigh privacy against other important factors when deciding whether the Plaintiff’s electronic information must be disclosed.

In Laushway, the plaintiff alleged that his personal injuries prevented him from completing sedentary tasks, including extended use of his computer. Prior to his injuries, the plaintiff had run an Internet based business from out of his home. The plaintiff claimed that his post-accident income was significantly reduced because he could no longer sit at his computer for extended periods of time. The defendants filed a Motion requesting production of ‘metadata’ captured on the plaintiff’s hard drive, which metadata would reveal when and for how long the plaintiff was sitting at and using his computer. This was likely the best evidence available to challenge the plaintiff’s claim that he could not continue his prior work, as his business was run out of his private home and shielded from public view. The defendants were successful in their Motion to retrieve this metadata. The plaintiff appealed, claiming this was a fishing expedition that unreasonably invaded his privacy.

The Court of Appeal determined that metadata was ‘electronic information’ that could be disclosed by the Plaintiff under Nova Scotia’s Rules of Court, and accepted that this metadata would be accurate, reliable and relevant to the plaintiff’s alleged claim that he could work a sedentary job. The Court then considered how to balance the Plaintiff’s duty to disclose this relevant information about his lifestyle and employability against the plaintiff’s privacy interest in how he used his own computer within his private home.

For the plaintiff to overcome his duty to hand over this metadata, the Court held that he must first establish his reasonable expectation of privacy in this electronic information. Unlike photographs or private messages that might be collected through a Facebook account or some other social media website, the Court did not see considerable private interest in this metadata that would simply show when the plaintiff was sitting at a computer. The order from the Court was tailored so that only the data showing the plaintiff’s use of his computer could be collected, denying the defendants fulsome access to computer files and Internet sites visited by the plaintiff.

In the context of activity trackers and other wearable technology, the court’s analysis in Laushway opens up the possibility of requesting similar ‘electronic information’ to demonstrate the plaintiff’s mobility and overall health. Assuming that data generated by an activity tracker is deemed accurate and reliable, and assuming the plaintiff’s claim raises issues about his physical activity and wellness, the plaintiff may be ordered to share this electronic information with the defendant. However, the court made plain that a plaintiff, simply by filing a claim, does not grant a defendant free license to rifle through all private aspects of his life which may be recorded electronically. Further, the availability of alternate means to challenge the Plaintiff’s claim, like surveillance for example, may make the Court reluctant to order disclosure.

Claims handlers and insurance defense counsel should closely watch these early decisions on the disclosure of electronic information in personal injury claims, and keep track of what plaintiffs may be wearing on their wrists. The time to raise these arguments is upon us.

Matthew Pearn is an associate lawyer with Foster & Company, based in Fredericton, New Brunswick, who practices in the areas of insurance defence and personal injury.