Vivametrica says that they are doing more than just enabling consumers to get access to their own data. They are also working with wearable tech companies and healthcare providers, and seeking to “reimagine employee health and wellness programs.” But what happens when there are conflicting interests between individuals who want to monitor data about their body and employers, wearable manufacturers and healthcare providers, and now the law?
Vivametrica isn’t the only company vying for control of the fitness data space. There is considerable power in becoming the default standard-setter for health metrics. Any company that becomes the go-to data analysis group for brands like Fitbit and Jawbone stands to make a lot of money. But setting standards isn’t as simple as it may seem.
Medical research on the relationship between exercise, sleep, diet, and health is moving extremely rapidly. The decisions about what is “normal” and “healthy” that these companies come to depends on which research they’re using. Who is defining what constitutes the "average" healthy person? This contextual information isn’t generally visible. Analytics companies aren’t required to reveal which data sets they are using and how they are being analyzed.
The current lawsuit is an example of Fitbit data being used to support a plaintiff in an injury case, but wearables data could just as easily be used by insurers to deny disability claims, or by prosecutors seeking a rich source of self-incriminating evidence. As the CEO of Vivametrica, Dr. Rich Hu, told Forbes, insurers can’t force claimants to wear Fitbits. But they can request a court order from anyone who stores wearable data to release it. Will it change people’s relationship to their wearable device when they know that it can be an informant? These devices can give their own interpretation of your daily activity, sleep, and moods, and that analysis may be seen to carry more evidentiary weight than the owner’s experience.
The law provides very few answers to these questions. In America, the Fifth Amendment protects the right against self-incrimination and the Sixth Amendment provides the right in criminal prosecutions “to be confronted with the witnesses” against you. Canadian courts have similar safeguards. Yet with wearables, who is the witness? The device? Your body? The service provider? Or the analytics algorithm operated by a third party? It’s unclear how courts will handle the possibility of quantified self-incrimination.
This becomes significantly more complex considering the variability of data with wearable trackers. The Jawbone UP, Nike Fuelband, Fitbit, and Withings Pulse all have their own peculiarities in how they work: Some will count moving your arms around as walking (which is great if you want writing to count as exercise), others can’t easily register cycling as activity. The sleep-tracking functions deploy relatively crude methods to determine the division between light and deep sleep. This “chaos of the wearable” might be merely amusing or frustrating when you're using the data to reflect on our own lives. But it can be perilous when that data is used to represent objective truth for insurers or courtrooms. And now that data is being further abstracted by analytics companies that create proprietary algorithms to analyze it and map it against their particular standard of the "normal" healthy person.