Who knew tracking your 10.000 daily steps could lead to disastrous data breaches?

-- By OnaMunozRuscalleda - 13 Oct 2023

Introduction: The quantified self

In May 2022, The Economist issued a series of articles named "The quantified self". The main premise of these articles is that humans can now measure all sorts of health data through their smart wristbands, watches or other devices, and enhance their health using that information. These devices can track all sorts of data: daily steps, sleeping habits, blood pressure, heart rate, and respiration, among others. The articles claim that there’s several benefits to measuring your health data with wearable devices, for example: increasing daily movement among sedentary people, reducing spikes in blood sugar after meals and thus helping people with diabetes, and helping design AI-personalised diets, among others. It sounds too good to be true: you put on a watch, and it can help you design a meal plan, a workout plan and a daily routine that will reduce your risk of disease and your risk of mortality and increase your health and well-being. All this, with just a watch! Unfortunately, it is too good to be true: the privacy risks that these data-collecting wearable devices pose is not explored in The Economist’s articles, despite being a real threat to consumer’s privacy. This essay will thus examine the issues that arise from wearing such devices and having them collect all your data. It will start by presenting the case of Fitbit and Apple’s data breach, and continue by analysing the legal aspect of the issue. The essay will conclude with an overview of the problems that this issue poses for current and future legislation, highlighting why this issue is so difficult to regulate.

The problem: The data breach

The situation that these wearable devices create is that almost all this data, which includes information about virtually all your physical information, your habits, your overall health, and even your location, is now bundled together in one of these devices and their respective databases. And problems arise when there’s a data breach, and all this information is not private anymore (was it ever?). This was the case for FitBit? and Apple: in 2021, an unsecured database containing more than 61 million records was hacked into, leaking all the information collected from fitness tracking and wearable devices. The information leaked included names, birthdares, weight, height, gender and geolocation. The main reason for the data breach was the fact that the database was not password-protected and the data was not encrypted.

What can the current law do about it?

Facing a situation such as Fitbit and Apple’s data breach, the question arises: what can the law do about this, if anything? The question is particularly problematic because these wearable devices lie at the intersection of several areas: health, data protection and personal fashion accessories. There are many laws that partially apply to this issue, but none that fully covers the whole legal issue. Firstly, the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This act created a series of national standards to protect sensitive patient health information from being disclosed without the patient’s consent. Specifically, the HIPAA applies to “health care providers”, defined in section 1171 of the aforementioned as “a provider of medical health services”. Asserting that a wearable watch is a “health care provider” seems like a far-reaching conclusion, but it does nonetheless provide databases with health information about the consumer. The main issue with the HIPAA is that the data collected in these devices is beyond the context of insurance reimbursement claims and that fitness trackers are not generally considered medical devices per se, which makes it harder for the HIPAA to apply to these kinds of devices. Secondly, the FDA has a Medical Device Tracking Regulation, the purpose of which is to ensure that manufacturers and importers of certain medical devices receive approval for these devices and are later able to locate them in the distribution chain. Again, the main issue is that more often than not fitness trackers are not considered to be medical devices. The FDA also released guidance and voiced its support for medical device cybersecurity, but this hardly amounts to proper legislation. Thus, with the current legislation there is no comprehensive data protection which covers fitness devices and their data.

What should the law do about it?: Problems with this case

After reading this essay, most people will reach the conclusion that the way forward is very easy: there just needs to be a piece of legislation passed which tackles smart devices and protects the data of the consumers. However, the answer is not as straightforward as it may seem. Firstly, these smart devices are considerably hard to define: is it a medical device? Is it just an accessory? Is it a learning tool? Every person that buys a smart watch, for example, has their reasons to do it, and they’re not always for health or medical reasons. The question thus arises whether the law should encompass every single device that has the potential to track health data, or only devices that are specifically designed to do so, leaving a big potential gap in the legislation. Secondly, these devices evolve so fast that as soon as a potential piece of legislation is passed, it will likely already be obsolete. Very soon there will no longer be smart watches tracking our movements, but there will be implants on our bodies which will do that function. What then? Should we pass a new piece of legislation? Should we predict the future developments already and include them all in this potential piece of legislation? What about what we cannot predict? As can be observed, this issue poses certain problems which are hard to overcome. The bottom line is, however, that we should all be aware of how our fitness data is tracked and the problems it may cause. The law should take into consideration that these devices go way beyond a mere fashion accessory, and it should look ahead into the future when regulating the potential data breaches these devices may cause.

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