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Partner and solicitor-advocate, Pitmans LLP

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Will Richmond-Coggan is a partner and solicitor-advocate at Pitmans LLP, one of the leading firms in the South of England. He specialises in dealing with technology and social media disputes, with a particular emphasis on privacy and data protection issues, as well as a wide range of disputes involving reputation online.
May 26, 2015

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How Wearable Tech is Creating Legal Headaches for Regulators and Employers

With the emergence of smart cars, automated drones and wearable technology, it feels that a future long heralded in science fiction might be about to arrive.

But in contrast to the world of fiction, where futuristic technology is frequently just deployed and integrated without difficulty into existing society, the real world is a little less straightforward.

Thus, in wearable technology in particular, lawyers are already starting to see a range of issues arising from this attempt to embrace the future.

One of the standard bearers for wearable technology has been the Google Glass device, looking like a pair of ordinary(ish) glasses, but with the lenses doubling up as screens for the display of supplementary information and also incorporating other features such as a touchpad controller and a built-in camera.

It is this last feature in particular which has already started to cause problems. There were reports in January of a man being detained in Ohio and questioned for three hours by Homeland Security after wearing a Google Glass device, with prescription lenses fitted, to the cinema.

He was accused of participation in a film piracy ring, and was only released when he finally persuaded the agents to connect the USB port on the device to their computers and verify that there was no infringing content stored there.

Although in that case the official response proved to be an overreaction, a wide range of professional working environments are having to consider carefully whether they will allow Google Glass on the premises.

Photo: Leonard Low under CC 2.0

Photo: Leonard Low under CC 2.0

Privacy risk

Where staff are equipped with wearable technology that is capable of making audio and video recordings, and they have access to confidential information about customers or clients, the risks of privacy invasion or data theft are significant.

That brings us to one of the really hot topics in relation to wearable technology – its interaction with the development of Bring Your Own Device (BYOD) policies for employers.

Even those employers who have already put in place such a policy may well have been focused on smart phones/laptops or USB hard-drives that were expected to be making a wired or wi-fi connection to the employer’s network.

Near-Field technology or Bluetooth connections greatly increase the risk of data being misappropriated in ways that are significantly harder for the employer to detect through standard network monitoring, making the importance of a detailed and rigorously enforced BYOD policy all the greater.

And of course, the risk is not merely of data being appropriated by the employees. BYOD also entails significant risks of infection of the network, as a yet wider range of devices are brought into the work environment, some of which may well contain significant security short-comings.

Staff are increasingly trained to be on alert for e-mails bearing the hallmarks of social engineering or spear-phishing attempts to gain access to the company’s systems.

But they’re unlikely to be so vigilant about their home networks which, in all likelihood, will interact with the same portable devices that are then taken into the office.

Employment policies

For the future, the importance of keeping up to date with these employment policies is going to be central to good information security practice in a professional environment.

But, of course, private users must also be vigilant about the terms of policies governing the privacy of data which they upload using wearable tech.

Babywear that monitors your child’s heart-rate, metabolism and core temperature might seem like a boon to anxious parents of a newborn. But are they taking the time to satisfy themselves that the data collected will not be shared with advertisers or other third parties such as health-care insurers?

Objecting after the event will not help if the effect of the small print supplied with the product is that they have consented to precisely the data use which they now wish to object to.

Similarly, as the technology continues to advance, developing a more and more comprehensive picture of people’s lives and daily habits (particularly in the fields of health-care and workplace monitoring), how are the end users to satisfy themselves that appropriate care is going to be taken of the data harvested from them, as it is distributed to the various third parties who wish to commercially exploit it?

This is where robust and rigorous privacy policies will be essential, but there may also be the need for central legislation to guarantee certain minimum standards of privacy as fundamental, in the absence of a conscious decision to opt out from them.

As is usual, any coverage of the legal issues around wearable technology will tend to focus on the negatives.

The fact is that this is new and exciting technology which has the potential to improve the lives and well-being of a good many users.

But without proper scrutiny at this stage, the opportunity properly to police the uses to which such technology may be put could be lost, and the risks identified above might prove to be merely the tip of the iceberg.

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