United States: Worn On The Sleeve

Watches that monitor sleep quality. Skullcaps that gauge head injury. An infant bodysuit that sends temperature and breathing updates to a mobile device. Ear buds that track your heart rate. These are just some of the innovations now emerging in the hot new field of wearable technology. Currently estimated at $1.6 billion, the wearable device market is expected to grow to $5 billion in revenue by 2016, according to Gartner. If upcoming releases like Google Glass (scheduled for mass distribution later this year) prove as popular as smartphones and tablets—whose combined revenue topped $66 billion in 2013, according to the Consumer Electronics Association—wearable devices stand to become a major new realm in technology.

But the technology is already garnering a lot of attention from lawyers and lawmakers with concerns about how the devices—and the information they collect—can be misused. Wearable devices are just one more example of how technology gets ahead of the law, says Gabriel Meister, a New York-based partner in Morrison & Foerster's Technology Transactions Group. "Often, the legislative response to perceived risks is very blunt, until we figure out exactly what the risks are."

Close to the Vest

One of the first attempts to address privacy-related legal issues—an 1890 Harvard Law Review article written by attorneys Louis Brandeis and Samuel Warren—sprung from concerns about the newly introduced handheld camera. People were afraid a newspaper could photograph them in a private space and publish it the next day, according to Andrew Serwin, a Morrison & Foerster Global Privacy and Data Security Practice Group partner.

"They felt the technology was extremely invasive," Serwin says. "What happened was the volume of data and its velocity increased. Wearable technology is the same issue— just at a much faster velocity, with much more volume and permanency."

Smartphones let users quickly shoot and share images. Google Glass wearers can snap a photo by speaking a phrase. With each new device, consumers are receiving and transmitting more information that can be stored indefinitely and potentially retrieved, shared, or even sold by people unknown to the original user, especially if they are stored or shared on a centralized server.

Fitness enthusiasts, for example, wouldn't necessarily want their health insurance provider—which may base premiums on health status—to access their blood pressure readings. They presumably would want to know whether a fitness tech provider reserved the right to share information with a third party, Meister says.

"There are a lot of really attractive services a consumer can get through wearable technology," says Peter McLaughlin, of counsel in Morrison & Foerster's Global Privacy and Data Security Practice Group in New York. "But how are the folks offering the technology managing the [privacy] expectations of people who are actually using it? And who's seeing the data?"

Medical devices, another transportable tech trend, can present even greater privacy risks. "Portable insulin pumps are smaller than an iPhone, regularly record insulin levels, and can transmit the information electronically to a website a patient and doctor use," McLaughlin says. "That information is a bit more sensitive than workout stats."

In some cases, the Health Insurance Portability and Accountability Act— which is meant to assure the privacy and security of medical data—may apply. In any case, consumers will want assurance that their personal data is protected from hackers. "Wearable technology developers ought to start thinking about the security of the data in the device and the security of data transmission sooner rather than later in the development process," McLaughlin says.

Is This Thing On?

Wearable devices aren't just compact— they're discreet. They operate, present, and collect data with more subtlety than their predecessors. And that feature has raised fears that these devices could be presenting new and unforeseen risks to safety, privacy, or intellectual property. Just two examples:

In October 2013, Google Glass enthusiast Cecilia Abadie was pulled over for speeding on a San Diego highway. She was also cited for distracted driving due to the Google Glass she was wearing. The citation was later thrown out of traffic court because of a lack of evidence that Abadie was distracted by—or even using—the device.

In January, a man sporting Google Glass was removed from an Ohio movie theater and questioned by Homeland Security agents for two hours about potential copyright infringement. "Reportedly he was only wearing the glasses because he had his prescription lenses in them," Meister says. "He was ultimately able to get them to connect his Glass to a PC via USB and have a look, to prove he wasn't recording the movie."

Because Google Glass is still new, many people do not understand how it works. Over time, society may become more accepting of wearable technology, as it has with smartphones.

A fitness club is a good example of a place where many people would not like strangers to take—or share—their pictures. Many gyms warn against photos and recordings. But now that many consumers keep their camera-equipped smartphones on them at all times— including when working out, to listen to music—preventing all camera use can be challenging.

"If we become aware that inappropriate photos have been taken and we can identify the photographer, we revoke the person's membership," says a legal professional for a fitness chain. "But banning phones is just not going to work practically."

The widespread use of smartphones may have helped consumers accept their use in gyms as well, the professional says. "There was a lot of fear eight to 10 years ago when camera phones started coming out. They're here to stay; people just have to be courteous."

Promising Potential

In reality, it's almost impossible to completely eliminate all privacy-related portable technology risks, although that hasn't stopped some businesses from trying. "Some of the pre-emptive reactions to Google Glass, for example, involve certain states' gaming commissions telling casinos in certain states to go ahead and ban similar devices," Meister says. "There are also legislators, in Delaware, West Virginia, New Jersey, and Illinois at least, introducing legislation prohibiting Glass use while driving."

Society—and the legal system—may need more time to determine all the potential concerns associated with new wearable devices. New laws will emerge, just as some states and municipalities forbid texting while driving. "We're in the phase where we are trying to apply old laws to new technology," Meister says. "But at some point, when devices like this become essential, you see new laws being tailored to the technology, and not vice versa."

Although it caused a mild privacy panic in the late 19th century, society eventually made its peace with the handheld camera. Google Glass—and the wearable technology items yet to come—may very well experience the same trajectory. "What ends up happening is technologies either become ubiquitous and people get used to the invasion of privacy, or they go away," Serwin says. "You have to look at the issue with the perspective of time."

Keywords: Technology, Wearable Technology

Mofo Tech Blog - A blog dedicated to information, trend-spotting & analysis for science & tech-based companies

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions