Let's Get Personal: Is Wearable Technology Creating a New Category of Personal Information?

By Elisabeth Schiffbauer

The rise of smart devices in recent years has transported technology and Internet usage from offices and homes to bags and pockets. Now, with the development and introduction of wearable technology, Internet access and technological computing will be ubiquitous as it becomes further integrated into our environment.

What is Wearable Technology?

Wearable technology “encompasses innovations such as wearable computers or devices.” Emma Poole, The Brave New World of Wearable Technology: What Implications for IP?, WIPO Magazine (June 2014). Currently, the existing wearable technology market is primarily comprised of smart glasses, watches, and fitness bands.  Many of these interact with smartphones and tablets via apps to track users’ sleep, health, and movement patterns. This constant monitoring via smart devices, apps, and wearables has additionally inspired the health trend, the ‘quantified self’. Gary Wolf: The Quantified Self, TED Talks (June 2010).

As opposed to other smart devices such as phones or tablets, wearable technology is personal. Other devices such as tablets may be shared among several users, but wearable technology may be specifically designed or adapted to a single person. “Wearable technology is not fixed to a particular location, but rather, a particular individual.” Roland Mathys, Legal Challenges of Wearable Computing, 6 (2014). Unlike other devices that may be used during the day or work hours, wearables are constantly operating (or are ready to operate) at night, and during personal or intimate settings, such as taking a shower. Highly attentive to their environment, wearables monitor and observe their location, collect information, and record their surroundings, generating vast amounts of data.

While wearable technology has brought the promise of instant data, particularly regarding health, increased monitoring and the production of new data is raising privacy and protection concerns.

       

Legal Implications of Wearable Technology

        

Generally, information or a combination of information that can identify an individual is considered personally identifiable information (“PII”) and warrants protection. This includes, but is not limited to an individual’s name, social security number, biometric records, and medical, educational, financial, and employment information. Currently, there is no comprehensive legal protection for personal information in the United States, only a patchwork of laws that apply to specific areas. With wearable technology, the creation of a personal profile is easy.           

The existing wearable market is dominated by the fitness and health industry. Information collected from an intelligent watch, for example, may capture data relating to heart rate, location, and calories burned, but may also capture additional data relating to an individual’s medical history or records, through the monitoring capabilities of the device, or the manual entry of the wearer. This information is stored by the wearable maker or a third party. Given the social-networking aspects of some of these devices and their relative apps, some of this information may also be uploaded, stored, and shared in the Cloud.

Virgin Atlantic rolled out their pilot run in June of 2014 of issuing staff at Heathrow airport Google Glass, to keep first class passengers up to date on flight information, weather, and even local events at their destination.  Some of the information used in this application of wearables may be considered sensitive information. For example, if you are Jewish and request a Kosher meal, your religious affiliation may be revealed.

Over the past year, banks and retailers have struggled with protecting business and consumer information from large data breaches. The advent of wearable technology has created a Pandora's box, widening the scope of available sensitive information in need of protection. Companies and individuals should take precautions in protecting their information, and wearable devices should allow users to edit, protect, and encrypt their information. Another question being asked regarding this information is – who owns it? Experts at WIPO have gone as far to ask whether personal data, or “life data” will become copyrightable.