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Wearables and Personal Health Data: Putting a Premium on Your Privacy Alexandra Troiano

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Wearables and Personal Health Data: Putting a Premium on Your Privacy Alexandra Troiano Brooklyn Law Review Volume 82 | Issue 4 Article 6 1-1-2017 Wearables and Personal Health Data: Putting a Premium on Your Privacy Alexandra Troiano Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr Part of the Consumer Protection Law Commons, Health Law and Policy Commons, Insurance Law Commons, and the Privacy Law Commons Recommended Citation Alexandra Troiano, Wearables and Personal Health Data: Putting a Premium on Your Privacy, 82 Brook. L. Rev. (2017). Available at: https://brooklynworks.brooklaw.edu/blr/vol82/iss4/6 This Note is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. Wearables and Personal Health Data PUTTING A PREMIUM ON YOUR PRIVACY INTRODUCTION Imagine waking up in the morning—your Fitbit1 alarm silently buzzing so you don’t oversleep. They know you had a restless sleep. You get dressed and decide to walk to work. They know where your office is located. So far, you burned approximately 250 calories. They know you walked 4000 steps. After work, you rush to the gym and get there just in time for your favorite spin class. They know you entered Equinox at 7:20 p.m. After a full day, you haven’t reached your goal just yet—15,000 steps. So, after dinner, you decide to take your dog for a long walk until your Fitbit buzzes again, letting you know you reached your goal. You are one step closer to living a healthier lifestyle and they know it. But who are “they?” Recently, insurance companies have gained greater insight into their policyholders’ health habits by incentivizing them to take steps toward a healthier lifestyle through the use of wearable devices and health apps. Mobile health— sometimes referred to as mHealtH—applications (apps) have increasingly provided new ways to track and collect personal health data. These apps allow individuals to input personal information including calorie intake, daily movements and exercise, and even vitals.2 These platforms allow users to view a more comprehensive picture of their personal healtH and, in turn, take steps toward a healthier lifestyle. In recent years, this technology has expanded to include wearable devices. Wearable devices, also known as “wearables,” are electronic technologies that are incorporated into items of clothing or accessories, such as watches, glasses, and rings.3 1 A wearable device worn on an individual’s wrist that tracks an individual’s daily movements and can act as an alarm clock—silently vibrating at a designated time. See generally FITBIT, https://www.fitbit.com/sleep-better [https://perma.cc/A975-5QUV]. 2 Jamie Lynn Flaherty, Note, Digital Diagnosis: Privacy and the Regulation of Mobile Phone Health Applications, 40 AM. J.L. & MED. 416, 421, 429 (2014). 3 “Generally, wearable technology will have some form of communications capability and will allow the wearer access to information in real time. Data-input 1715 1716 BROOKLYN LAW REVIEW [Vol. 82:4 This technology expands the capabilities of health apps by collecting users’ physical activity sucH as “heart rate, skin temperature, or respiratory rate . in real time” and transmitting this collected data into the apps.4 Wearables increase the efficiency and convenience of tracking biometric data because the device itself can track and store this information while the user simply wears it—even in water and during sleep and exercise.5 Once the wearable collects data, the information is sent wirelessly to a health app on a smartphone or computer, or sent to the “cloud.”6 Users can then view a complete image of their health by looking at their compiled data on a mobile app via a smartphone or on a computer. While wearable devices have been commonly used in the medical field,7 recently there has been a sharp increase in wearables that serve a more functional purpose—to “recreationally track health and fitness levels.”8 For example, a company called Fitbit Inc. sells a line of wearable fitness- tracking wristbands, or “Fitbits,”9 that track a user’s physical activity while wearing the device, including the number of steps taken, distance travelled, and calories burned. The device includes a GPS monitor, a heart rate monitor, and an alarm10 and can even compile exercise summaries.11 Fitbit holds the first spot in the wearables market, with Apple Inc. in the number three spot.12 Fitbit sold 10.9 million devices in 2014 capabilities are also a feature of such devices, as is local storage.” Wearable Technology and Wearable Devices Everything You Need to Know,WEARABLE DEVICES, http://www.wearable devices.com/what-is-a-wearable-device/ [https://perma.cc/J45R-FFKG] (last updated Mar. 26, 2014). 4 Matthew R. Langley, Note, Hide Your Health: Addressing the New Privacy Problem of Consumer Wearables, 103 GEO. L.J. 1641, 1644 (2015). 5 See id. 6 Ruby A. Zefo, Wearable Devices: Keep Data Privacy in Check, INFO.WEEK (Aug. 18, 2014), http://www.informationweek.com/mobile/mobile-devices/wearable-devices-keep- data-privacy-in-check/a/d-id/1298085 [https://perma.cc/288C-CNNB]. PC Mag defines “cloud computing” as “storing and accessing data and programs over the Internet instead of your computer’s hard drive. The cloud is just a metaphor for the Internet.” Eric Griffith, What Is Cloud Computing?, PC MAG. (May 3, 2016), http://www.pcmag.com/article2/0,2817, 2372163,00.asp. 7 See, e.g., Spela Kosir, Wearables in Healthcare, WT (Apr. 15, 2015), https:// www.wearable-technologies.com/2015/04/wearables-in-healthcare/ [https://perma.cc/2AGX- GA6H]. 8 Langley, supra note 4, at 1644. 9 FITBIT, http://www.fitbit.com/home [https://perma.cc/8RBG-2T8V]. 10 See Our Technology,FITBIT, https://www.fitbit.com/technology [https:// perma.cc/87R3-EMG9]. 11 SmartTrack,FITBIT, https://www.fitbit.com/smarttrack [https://perma.cc/ 8GYM-46EW]. 12 Jeff Dunn, Fitbit is Still the Leader In Wearables, but It’s Losing Its Grip, BUSINESS INSIDER (Mar. 7, 2017), http://www.businessinsider.com/fitbit-vs-apple-watch- xiaomi-wearable-sales-chart-2017-3. 2017] WEARABLES AND PERSONAL HEALTH DATA 1717 and “sold 1.6 million in the first three months of 2015.”13 In the third quarter of 2015 alone, the company sold 4.8 million connected devices and raised $409.3 million in revenue.14 While Fitbit sales have declined this past year due to interest in other products, such as the Apple Watch or cheaper wearable devices, the company shared its plan to “turn Fitbit into a digital-health company—one that relies less on consumers and focuses on selling to the health-care industry.”15 Since the release of the original Fitbit, there has been a dramatic increase in wearable technologies and their capabilities.16 Other types of wearable technology include smartwatches,17 smart glasses,18 and smart shirts that track biometric information.19 According to a recent report by Tractica, a market intelligence firm, global revenue from wearable devices is forecasted to reach $6.3 billion by 2020—a dramatic increase from the “$218 million revenue in 2015.”20 The report also predicts that over 75 million wearable devices will be sold between the years 2014 and 2020.21 The market for these devices continues to grow and even employers are implementing wellness programs using these wearables to increase productivity and healthy habits within the workforce. Now, insurance companies offer discounts 13 Brian Dolan, Fitbit Files for IPO, Sold Nearly 11 Million Fitness Devices in 2014,MOBIHEALTHNEWS (May 7, 2015), http://www.mobihealthnews.com/43412/fitbit- files-for-ipo-sold-nearly-11-million-fitness-devices-in-2014 [https://perma.cc/M5FJ-U7LW]. 14 Press Release, Fitbit, Fitbit Reports $409M Q315 Revenue; Raises Guidance to $1.77 to $1.80B FY15 Revenue (Nov. 2, 2015), https://investor.fitbit.com/press/press- releases/press-release-details/2015/Fitbit-Reports-409M-Q315-Revenue-Raises-Guidance- to-177-to-180B-FY15-Revenue/default.aspx [https://perma.cc/4LC5-JG7S]. 15 Selina Wang, Fitbit’s Sales Plummet as Device’s Popularity Fades,BLOOMBERG TECHNOLOGY (Feb. 22, 2017), https://www.bloomberg.com/news/articles/2017-02-22/fitbit- s-fourth-quarter-sales-drop-as-device-s-popularity-fades [https://perma.cc/W9TJ-9FVG]. 16 See generally Martin Gee, A Day in the Life of Wearable Tech,TIME, http://time.com/see-the-wearable-tech-of-the-future/ [https://perma.cc/QV6D-4KGE]. 17 Tyler Biscontini, WEARABLE TECHNOLOGY, Salem Press Encyclopedia of Science, (Jan. 2015) (“Smartwatches mimic the appearance of traditional watches, featuring digital screens that display time and additional information. Most smartwatches pair with a user’s smartphone, allowing the user to see messages or calls on the watch that the phone has received. Some smartwatches are even capable of taking pictures, sending messages, and making phone calls.”). 18 Id. (Smart glasses “use a translucent material placed in front of one or both eyes to project a screen directly into the user’s field of vision. Most smart glasses function by tracking the hand and eye movements of the users and syncing their movements with the projected display. The glasses can function as a global positioning system (GPS), access the Internet, and take hands-free videos and pictures.”). 19 Id. 20 Vera Gruessner, Wearable Devices Market Expected to Reach $6.3 Billion by 2020, MHEALTH INTELLIGENCE (Oct. 19, 2015), http://mhealthintelligence.com/ news/wearable-devices-market-expected-to-reach-6.3-billion-by-2020 [https:// perma.cc/M2H6-W43R]. 21 Id. 1718 BROOKLYN LAW REVIEW [Vol. 82:4 to policyholders who use Fitbits, or other wearable wristbands, to track and report health information.22 At first glance, this idea seems like a win-win for insurance companies and policyholders—insurance companies can reduce risk by encouraging healthier habits for their policyholders, and policyholders can receive discounts on their health insurance.
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