Freedom Fit: Modern Criminal Defense & Wearable Tracking Devices

You’ve seen the commercials.

Go Fit.
Push Fit.
Pull Fit.
Whooooaaaa Fit.
Stay Fit.

If not, here it is.

Endless Fits. “All the fits” are more than healthy-living tracking devices, they are slowly evolving into persuasive tools for courtroom advocates and criminal defense attorneys should take note. Defense Fit.

Unintended Use of Fitbits:

Recently a 44-year-old woman in Pennsylvania was charged with reporting a false alarm, tampering with physical evidence, and making a false report after data pulled from her Fitbit wristband contradicted her original sexual assault claims.

The affidavit states:

The information collected from the fit bit device showed that [defendant] was awake and walking around the entire night prior to the incident and did not go to bed as reported. The Fitbit shows activity up until the time of the call and then again only when it is collected by your Affiant. That based on the above and additional evidence your Affiant believes that the [defendant] was not raped as reported and fabricated the entire incident.

Over the last few years, civil attorneys have presented Fitbit tracker information in court to either bolster or discredit physical activity in personal injury lawsuits.

Women have even learned they are pregnant when their Fitbit data became erratic. An example of the diverse information discoverable from these devices.

What is a Fitbit?

Fitbit devices were created to provide real-time feedback on personal fitness goals. By wirelessly syncing and automatically recording data to your smartphone or computer, Fitbits provide up to the minute tracking of your activity, food, weight, exercise, location, etc. Below are recent Fitbit products and features.

• Zip: tracks steps, distance, calories burned, & active minutes;
• One: Zip’s features plus sleep tracker (i.e. how long & how well you slept);
• Flex: One’s features plus hourly activity tracker & stationary time tracker;
• Charge: Flex’s features plus floors climbed tracker & caller identification;
• Alta: Charge’s features plus call, text, & calendar alerts and an auto-record workout feature;
• Charge HR: includes an up to the second heart rate data.
• The Blaze & Surge: touchscreen watches that include heart rate data & GPS location.

 Discovering Fitbit Data:

A criminal defense attorneys pursuit for exoneration never ceases. Knowing whether your client owned a wearable device should be a question in every initial consultation. Valuable information at the time of the alleged incident such as heart rate, location, texts received, and calls received can be learned from the wearable device. The Fitbit user can pull the information themselves or provide you with their username and password. The data can then be downloaded straight from the Fitbit website. The very tactic used by police in the above Pennsylvania, sexual assault case.

If the Fitbit user is an adverse party, unwilling to grant access, then you’ll have to lean on the old school approach of subpoenas and court orders. In fact, Fitbit’s privacy policy states, “it will release data necessary to comply with law, regulation, or valid legal process.” ¹

Fitbit Data & Law Enforcement:

Legislatures have struggled to chase technological advances. By the time lawmakers enact a new statute, the next, best device hits the market. Recently the American public has learned of government attempts to obtain a master-key to unlock cell phones & the warrantless use of skimming devices to gather personal information. Fortunately, courts are recognizing the need for warrants when intruding into one’s “handheld privacies.”

The United States and Texas courts require law enforcement to obtain a warrant before searching confiscated cell phones. ² This warrant requirement has yet to extend to location data as officers routinely track individuals by obtaining information from cell phone companies without the person’s knowledge. While wearable devices contain location data, they have a closer resemblance to cell phones. Thus, a warrant should be obtained before searching any Fitbit (or similar) device. Bolstering this opinion is the Riley court’s statement that, “obtaining location information through a cell phone is a search and requires a warrant”. ³ That being said, laws relevant to technology are in constant flux, and a person can always waive their rights by consenting.

Even though the legal landscape surrounding wearable devices is somewhat chaotic, data recovered can be a powerful criminal defense tool to use, especially in pretrial negotiations. Every defense lawyer should know whether or not their client has or was wearing a wearable tracking device on the night of the alleged incident; know how to recover the necessary data; know how to interpret and apply it. Defense Fit.