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How your Fitbit data can and will be used against you in a court of law


A legal case in Canada is breaking new ground by using data collected from a Fitbit to assess the relative fitness of a person making an injury claim. The law firm representing the claimant is hoping to demonstrate that their client, who used to be a personal fitness instructor, is not nearly as active as she would have expected to be given her former profession.

The data from the Fitbit is being processed by a company Vivametrica. They will compare the collected data from the claimant with population health data and judge whether it is normal for someone of her former profession.

Although this case raises a number of legal and practical issues about the use of activity tracking data in court, it has opened the floodgate of speculation about how this data could be used in future legal cases. In this particular case, the data will assist the lawyers, presumably in conjunction with expert opinion, with accurately determining what this particular person’s current level of activity is. They will then hope to show how it is significantly less than it should be if it weren’t for the injury she suffered.

Where we are far more likely to see activity data being used in court is for the purpose of discrediting claims of injury which are contradicted by activity data. Attorney Neda Shakoori gives an example scenario of someone claiming injury as a result of a motor vehicle accident whose data from their 5 mile runs is uncovered and used by the defendant’s legal team.

In these cases, the data being used is simple step counting. In the future however, we will be wearing devices that will be able to measure a range of physiological activity continuously. Coupled with GPS data that records the wearer’s location at any given time, the physiological data will document in detail what a person was doing at any given time. It will be difficult to claim for example, that you were relaxing at home watching the television when the data actually showed at the time you were experiencing raised heart rate, faster breathing and elevated levels of stress.

In fact, this data, if it were accessible to criminal investigators, could actually be used to help in tracking possible suspects by placing them at the scene of a crime with an appropriate “physiological profile” of someone committing a crime.

The courts in various jurisdictions will be determining the appropriate use of this data and will need to overcome issues of privacy and in the US in particular, with aspects of the American constitution. The 5th Amendment for example provides protection against self-incrimination and so the question is whether fitness data could be ruled inadmissible on those grounds.

In practical terms, it may also be hard to argue that the data being presented in court was actually that collected from a specific individual and that it represents a true record of that person’s activity. It would be extremely easy currently to produce data that reflected a specific pattern of activity. It is also difficult to prove that it was a specific individual that was wearing the tracker when the data was recorded. Eventually however, it may be possible to actually to tie this data unequivocally to a specific individual using their heartbeat data as biometric identification.

Using heartbeats to identify an individual is something that Apple has considered and has even filed for a patent that uses heartbeat data to identify a person in the same way that they currently use fingerprints to unlock mobile devices. In fact, Nymi is already using this approach in a device that will provide access to computers, cars and homes.

Another type of wearable that will increasingly play a large role in legal cases are cameras such as the Narrative Clip that are constantly taking photos. Like activity trackers, the evidence produced by these devices may end up being used to save the wearer in a court of law or damn them.

What the legal case in Canada has highlighted more than ever is the fact that policy and the law is going to struggle to keep up with how rapidly technology is changing what we can now do in terms of evidence. For users of wearables, it is another aspect to consider as we move to completely documented lives.

Why Microsoft’s transformation into an ‘open source’ company is a great move

In a move that would have been unthinkable a few years ago, Microsoft has made its development platform freely available and ready to support not only Windows, but Macs, Linux and Apple, and Google’s mobile phone platforms. Microsoft will now be working with organisations like Xamarin who have been providing a version of this platform across different mobile operating systems for some time but doing so without explicit and direct support from Microsoft.

This open sourcing of Microsoft’s dot Net environment is in stark contrast to the loathing that Microsoft showed for the open source movement as far back as 2001, declaring it a threat to intellectual property and the basis for so many companies failing at the end for the dot-com boom.

Former Microsoft CEO Bill Gates even went as far as to claim that open source responsible for the loss of jobs. He argued that people were basically volunteering their time to develop software that could have been done by paid employees of Microsoft.

Of course at the time, Microsoft simply perceived the rise of Linux as a commercial threat to the only thing it held dear, namely its monopoly through Windows.

Open Source Explained

But a number of things have happened since then. The most significant of which has been the rise to dominance of Apple and Google in the mobile phone space and Microsoft’s complete marginalisation on this platform. Microsoft ships just 2.5% of the world’s smartphones. Despite Microsoft having its own smartphone platform, it has realised that it has to embrace a world where its software needs to run on different platforms to assure their survival. Microsoft has made its Office software free on Apple and Android phones and tablets for non-business use. Earlier this year, Microsoft made Windows itself free to use on phones and small tablets. Here again, it acknowledged that it was competing against Google’s Android which is largely free for companies to use on their hardware.

The other major change in the tech landscape has been the move to using the Cloud and especially non-Windows platforms on the Cloud. Again, there was a time when Microsoft would have made the case that you couldn’t develop and run corporate systems on anything other than Windows machines. This was something that companies like IBM had argued for years prior to the move from large mainframe machines to servers running Microsoft Windows. Companies like Amazon showed that you could in fact do just that and has become a leader in providing enterprise services that need a few clicks of the mouse and a credit card to set up. Not only did it become trivial to set up and run computers, but it made running open source developed software on Linux servers ridiculously easy as well.

Microsoft did respond to the rush to the cloud led by Amazon by providing its own platform Azure. Unlike the mobile platform, Microsoft is having more success here and there is some evidence that they are even starting to outpace Amazon. Microsoft’s continued success here will be the fact that it accepts and supports the open source development world and even running software on non-Windows machines.

All of these moves by Microsoft will come at a cost but one that is essential to take if it is to transition into a world where the Windows PC is no longer dominant. The direction Microsoft is taking is obviously reassuring investors with Microsoft’s shares hitting new heights, making Microsoft the world’s second most valuable company after Apple.

Perhaps more importantly, these moves may have more of an impact in changing the world’s consumer perception of Microsoft as a closed and backward looking company that is only interested in preserving its control over Windows and Office. Perhaps this is also a reflection of the success of open source approaches to development, highlighting that openness and collaboration can be as commercially sound a practice as it is in producing high quality software.

Despite Darknet drug market arrests and seizures, can they be stopped?


In an operation involving 17 countries, law enforcement agencies arrested 17 people believed to be involved with Darknet markets. The operation, code named “Onymous”, first came to light with the announcement by the FBI and Homeland Security Investigations of the arrest of Blake Benthall (also known as “Defcon”) the operator of Silk Road 2.0. This arrest was followed up with news that a number of other Darknet sites had been seized. These sites dealt with the sale of drugs, firearms, stolen credit cards and money laundering.

In addition to the arrests in the US and Europe, US $1 million of Bitcoin was recovered, along with 180,000 Euro, gold, silver and drugs. The FBI also claimed that 27 sites with 400+ addresses pointing to those sites, have been siezed.

Is Tor all you need?

The actions of these law enforcement agencies mark a turning point in the battle against Darknet markets, which up until last week, seemed to be stacked in favour of the Darknet merchants. Using the anonymising and encrypting software Tor , Darknet users had become complacent about their ability to operate without threat of discovery or arrest. Even now,many in that community still hold that the law enforcement organisations succeeded not because of any particular sophistication in their detection, but because those arrested slipped up, and became lax with their “operations security” , or “opsec”.

The Darknet law enforcer’s investigative toolkit

Although this may be a factor in how certain people were arrested, it underestimates the range of approaches that law enforcement, especially with collaboration amongst different countries, have to bring to bear against criminals in the Darknet.

In their arsenal, law enforcement in the US and elsewhere may have found a way to break the anonymity of Tor and through this trace people’s use of sites back to their computers. There is of course no evidence that this is the case but it is theoretically possible, and attacks on the Tor network have previously been discovered.

More likely however is that law enforcement agencies used a more traditional approaches to track down the administrators of the Darknet markets.

Darknet system administrators talk too much

Infiltration of sites by undercover agents has been a tried-and-tested technique used by law enforcement for some time. Then, once arrests are made, it seems that most cyber-criminals are only too happy to inform on others in exchange for leniency in sentencing. Finally, there is the simple technique of participating in discussion forums and waiting for people to reveal too much information about themselves, something that a great deal of those arrested seemed to have been only too willing to do.

This last point is probably one of the more surprising ways of getting information about the “kingpins”behind the sites. One commenter on the discussion site Reddit, made the observation “I can’t believe how much information he gave about himself online” in referrence to Ross Ulbricht, the administrator of the original Silk Road who was arrested in 2013. It seems that Benthall, or Defcon, administrator of Silk Road 2.0 was little different.

When Darknet criminals come up for air

A significant weakness that criminals on the Darknet face in protecting their anonymity comes when they have to actually deal with the “real world”. This happens when they have to buy services like server hosting, deal with their Internet service provider and exchange Bitcoin for a currency they can actually use elsewhere. For drug vendors, there is the actual task of buying and shipping physical objects around the world which again presents a time when they reveal themselves.

It is at these points that Darknet criminals are at their most vulnerable and most likely to make an error giving law enforcement a chance of catching up with them.

The Darknet market drivers

Despite the success of operation Onymous, Darknet markets are still around and will continue to grow to meet an obvious and growing demand. Despite these services being on the so-called Dark Web, finding them is as simple as using Google and downloading the software package Tor. Darknet markets have driven easier access to cheaper and more reliable delivery of drugs to a global audience. The demand for these services is likely to be unaffected by the arrests because for every market that is taken down, someone will see the opportunity to take their place.

Already, markets like Evolution will have taken the clients and sellers from Silk Road 2.0 and other seized sites. Evolution in particular has become much more security conscious, implementing a range of techniques to frustrate law enforcement agencies' attempts to shut them down.

The drivers for these markets is the enormous amounts of money behind what is a simple business proposition. Silk Road 2.0 drove US $8 million in monthly sales. Assuming other sites were comparable, this represented an annual turnover of US $3 billion for all of the sites that were in operation before the bust. Coincidentally, this is roughly the same amount as annual trading volume of Bitcoin in US dollars, showing how much of Bitcoin’s current use is tied to the drug trade.

Europol chief, Troels Oerting has claimed that sites like Evolution are next in line for closure. Saying that it was only a matter of time before they got to them. Only time will tell if this turns out to be the case.