New Legal Problems Created by Wearable Devices

By: Young Ah Kim

I. Introduction

Wearable devices have been drawing serious attention in the media as the next big thing since Google glass, a wearable device with an optical head-mounted display, was launched in 2013.[1] Fitbit, the maker of fitness-tracking wristbands, went public in 2015 after its sales rose 174% to $745 million in 2014.[2] Since GoPro’s initial public offering in 2014, the maker of the action camera has climbed over 100% from its top-of-the-range IPO price-per-share.[3] Apple unveiled the Apple watch that can monitor heart rate and activity and create a one-stop shop for health information of consumers.[4] Apple CEO Tim Cook called the Apple Watch “the most personal device we’ve ever created.”[5] According to Statista, an Internet-based statistics provider, “the global wearable device market is expected to grow from $5 billion in 2014 to $12.6 billion by 2018.”[6] In a 2014 PwC survey, fifty-six percent of the respondents believed that wearable health devices could extend their life expectancy by 10 years.[7] Similarly, forty-six percent thought that wearable technology will decrease obesity by helping consumers to monitor nutrition and exercise, and forty two percent expected that the devices would improve athletic ability over time.[8]

Wearable devices are defined as electronic technologies that are “incorporated into items of clothing and accessories which can comfortably be worn on the body.”[9] “Wearable computers may be worn under, over, or in clothing, or may also be themselves clothes.” The difference between mobile phones and these wearable devices is that wearable devices have much greater performance and are more sophisticated in providing sensory and scanning features such as tracking of physiological function than hand-held devices.[11] Wearable technology has far reaching impacts in the fields of health and fitness education, finance, aging, disabilities, gaming and entertainment.[12] For instance, a “Smart Shirt” can monitor vital signs and send that biofeedback information to a hub center in real time.[13] With the increasing popularity of wearable devices, consumers are willing to provide their sensitive information in exchange for the benefits of “self-profiling” and thorough analysis of their health.[14]

These characteristics of wearable devices are likely to create new legal problems regarding privacy and product liability. These legal issues are not novel per se, but the ability of wearable technology to capture real-time information and images in a user’s and someone else’s life creates many new legal questions.

II. Privacy

Since wearable technologies gather and process considerable amounts of sensitive personal data, they raise a broad range of privacy issues such as identity theft, stalking or discrimination.[15] The International Privacy Conference of 2014 stated in a declaration that big data, a term that describes the large volume of data[16], derived from technologies such as wearable technology should be treated as personal data.[17] Personal information is generally defined as “information relating to an individual that can be used to identify, locate or contact that individual, alone or when combined with other personal or identifying information.”[18] Examples of personal information include a person’s name, home address, email address, social security number, photographic image, audio and video recordings, or fingerprints.[19]

The precise definition of personal information varies depending on the specific jurisdiction.[20] In Illinois, for instance, under the Personal Information Protection Act, personal information is limited to “an individual’s first name or first initial and last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted: (1) Social Security number; (2) Driver’s license number or State identification card number; (3) Account number or credit or debit card number, or an account number or credit card number in combination with any required security code, access code, or password that would permit access to an individual’s financial account.”[21]

As long as the user of the device consents to such data collection explicitly or implicitly, data collected and processed through wearable devices may be justified in most jurisdictions. Illinois courts have recognized consent as a defense to a publication of private facts claim.[22] In Illinois, “the right of privacy is not absolute but is subject to limitations where there is express or implied consent and legitimate interests.”[23] A more serious problem is someone else’s privacy, because they would not even be aware that their personal information is collected and processed without their express or implied consent. Since wearable devices collect information about the environment in which the wearer is present, the devices can be used to invade someone’s privacy. Since such devices are attached to the body of a person or her clothing and are therefore constantly in motion, the device will generate new data wherever the wearer goes. For instance, Google Glass is able to record real-time facial images of someone walking down the street and search and post data on that person on the spot.[24] Thus, the scope of data collected and processed by such devices should be taken into serious consideration to protect third parties’ sensitive and personal data.

III. Product Liability

In March 2014, the U.S. Consumer Product Safety Commission (CPSC) ordered a recall of the Fitbit Force, one of the most popular wireless activity-tracking wristbands, due to the risk of skin irritation.[25] Fitbit sold more than one million Fitbit Forces in the U.S.[26] According to the official CPSC recall notice, “[u]sers can develop allergic reactions to the stainless steel casing, materials used in the strap, or adhesives used to assemble the product, resulting in redness, rashes or blistering where the skin has been in contact with the tracker.”[27]

The increasing use of wearable devices raises various issues regarding potential product liability for manufacturers because they may malfunction and/or protected data may be lost. Since wearable devices are always turned on as long as the user wears it, the risk of product liability also increases. If a healthcare monitoring device that measures heart rate or glucose level for diabetes fails to correctly identify the symptoms of a patient, or if such device has inherent defects, dangerous medical situations may happen. Then, should the manufacturer be liable for the risk of bodily injury?

If wearable devices were designed so defectively that a reasonable patient could still suffer injuries although he used them as instructed, she may be able to recover damages. She may be able to obtain punitive damages as well if she can prove that the device maker knew or should have known about the defects during the manufacturing process. However, if injuries are caused because the device automatically makes an incorrect critical decision, such as incorrect frequency or amount of an insulin injection, the question of the manufacturer’s liability becomes even more complicated.

IV. Conclusion

Wearable devices provide comfort and safety by letting users easily locate information, gauge their body conditions such as pulse, heart rhythm or skin temperature and by giving them personalized recommendations based on the analysis of human outputs. At the same time, however, wearable devices may invade someone’s privacy or cause serious injuries if they are not properly operated or manufactured. These concerns will increase as wearable devices become more popular. Manufacturers of wearable devices should take into consideration a series of new legal problems, not just current federal and state regulations. Wearable devices producers should follow the proper security procedures when developing their products and services.

 

[1] Jillian D’Onfro, An insider’s look at the tumultuous launch of Google Glass, Business Insider (Feb. 28, 2015) http://www.businessinsider.com/google-glass-launch-2015-2

[2] Stephen Gandel, Fitbit’s IPO scores one of the biggest opening pops of the year, Fortune (June 17, 2015) http://fortune.com/2015/06/17/fitbits-ipo-prices/

[3] Brian Solomon, GoPro Can’t Be Stopped: Stock Up Over 100% From IPO, Forbes (July 1, 2014) http://www.forbes.com/sites/briansolomon/2014/07/01/gopro-cant-be-stopped-stock-up-over-100-from-ipo/#2f429d069dc9

[4] http://www.apple.com/live/2014-sept-event/

[5] Id.

[6] Tom Starner, Risks of Wearables, Risk & Insurance (October 15, 2014) http://www.riskandinsurance.com/risks-wearables/

[7] PwC Health Research Institute, Health wearables:Early days, 2014 Summer https://www.pwc.com/us/en/health-industries/top-health-industry-issues/assets/pwc-hri-wearable-devices.pdf

[8] Id.

[9] Wearable Devices, Wearable Technology and Wearable Devices Everything You Need to Know (March 26, 2014) http://www.wearabledevices.com/what-is-a-wearable-device/

[10] Steve Mann, Wearable Computing, in: Mads Soegaard / Rikke Friis Dam (eds.), The Encyclopedia of Human-Computer Interaction, 2nd ed., 2012 (available at https://www.interaction-design.org/literature/book/the-encyclopedia-of-human-computer-interaction-2nd-ed/wearable-computing)

[11] Id.

[12] Id.

[13] Id.

[14] Ben Rossi, Wearable technology: will legal issues spoil the party?, Information Age (July 29, 2015)

[15] Id.

[16] http://www.sas.com/en_us/insights/big-data/what-is-big-data.html

[17] Id.

[18] Personal Information, Practical Law Glossary Item 1-501-8805

[19] Id.

[20] Id.

[21] 815 Ill. Comp. Stat. Ann. 530/5

[22] Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964 (1927); Green v. Alaska Nat. Ins. Co., 759 So. 2d 165, 2000 A.M.C. 1369, 1999-2844 (La. Ct. App. 4th Cir. 2000), writ denied, 763 So. 2d 606 (La. 2000).

[23] Bloomfield v. Retail Credit Co., 14 Ill. App. 3d 158, 173 (1973)

[24] Tom Starner, Risks of Wearables, Risk & Insurance (October 15, 2014) http://www.riskandinsurance.com/risks-wearables/

[25] the U.S. Consumer Product Safety Commission, Fitbit Recalls Force Activity-Tracking Wristband Due to Risk of Skin Irritation http://www.cpsc.gov/en/Recalls/2014/Fitbit-Recalls-Force-Activity-Tracking-Wristband/

[26] Mark Rogowsky, Fitbit Force Recall Is Bad News For The Company And Wearable Tech, But Is It Necessary?, Forbes (March 13, 2014) http://www.forbes.com/sites/markrogowsky/2014/03/13/fitbit-force-recall-is-bad-for-the-company-and-wearable-tech-but-is-it-necessary/#61a9f2887e8a

[27] Id.

 

Comments are closed.