Over the past several months I have written about the increasing use of every day technology that automatically tracks our movements and records our conversations. Cellphones ping off cell towers that give the government access to our daily movements through information stored by carriers like Verizon, AT&T and Sprint. Alexa and other smart home devices can record our conversations and keep track of our search histories. Smart phone apps and Fitbits that track movement, heart rates and other physical activity can be used to track locations, times and other physical attributes that law enforcement can access to investigate a variety of crimes.

In San Jose, California police used information gathered by the victim’s Fitbit to charge her 90-year-old step-father with murder. Anthony Aiello told investigators that he had last seen his stepdaughter when he took homemade pizza and biscotti to her house. Mr. Aiello told investigators that she then walked him to the door and handed him two roses in gratitude. Five days later, Mr. Aiello’s stepdaughter, Karen Navarra, 67, was discovered by a co-worker in her house with fatal wounds on her head and neck.

The victim had been wearing a Fitbit fitness tracker, which investigators said showed that her heart rate had spiked significantly around 3:20 p.m. on Sept. 8, when Mr. Aiello was there. It then recorded her heart rate slowing rapidly, and stopping at 3:28 p.m., about five minutes before Mr. Aiello left the house. Mr. Aiello told the authorities he had dropped off the food for his stepdaughter and left her house within 15 minutes and claimed that he saw her drive by his home with a passenger in the car later that afternoon.

Investigators obtained a search warrant and retrieved the Fitbit data. When Ms. Navarra’s Fitbit data was compared with video surveillance from her home, the police discovered that the car Mr. Aiello had driven was still there when her heart rate stopped being recorded by her Fitbit. Mr. Aiello was subsequently arrested on murder charges based in large part on the information from the victim’s Fitbit.

Originally designed to motivate wearers to take control of their fitness and health, fitness devices have become a high-tech tool that law enforcement utilizes to solve crimes. Attached to a person’s body, these devices have a unique front-row seat to their lives, inadvertently documenting both the intended and unintended data.

Fitbit location data has been used in a number of recent cases, from a sexual assault case in Pennsylvania in 2015 and a personal injury case in Canada in 2014. In 2017, a Garmin Vivosmart GPS recorded a woman’s struggle with an attacker in Seattle. The same year, investigators used data from the Fitbit of a Connecticut woman to charge her husband with murder. This year, investigators in Iowa, with the help of F.B.I. experts, sifted through data from the Fitbit of Mollie Tibbetts, a 20-year-old student who was missing for about a month before her body was discovered in August. Surveillance video led them to a 24-year-old man who was charged with murder.

And while these devices have been useful to solve crimes, they can also be misused by government agencies and private citizens to unlawfully spy on their users. A suspicious spouse or boyfriend can use their partner’s computer, smartphone or wearable fitness/heath device to surreptitiously gain unauthorized insight into the movements, contacts and conversations of another. Such unauthorized access is an invasion of privacy when done by an individual, and a violation of Fourth Amendment protections against unlawful search and seizure when done by government agencies. Just recently, the FBI unlocked a suspect’s smartphone using the owner’s image as it was set up for facial recognition rather than a numeric code. As smart devices proliferate and advance, law enforcement’s use of these devices as evidence will increase rapidly. We must at the same time guard against the misuse of the information that can be accessed and make sure that proper protocols and procedures are employed to lawfully access the highly private and detailed information contained on these devices.

Stahl Criminal Defense Lawyers aggressively defend organizations and individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success.

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