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The Detective On Your Wrist And In Your Phone

June 23, 2015

The Detective On Your Wrist And In Your Phone

by James J. Franklin

Love that fitness app you downloaded to your smartphone? Like the idea of having an Apple Watch, Fitbit or some other mobile device helping you stay in shape?

There’s certainly nothing wrong with any of these devices or apps designed to help people exercise, watch their calories and weight and generally motivate them to live a healthier life. I use some of these apps myself.

But users need to beware: All of the information these devices and apps are collecting about you – not to mention whatever you may be posting on social media – can find its way into court.

Your smartphone, television and car may even be collecting information without your knowledge. For example, iPhones have something called “frequent locations’’ that creates a heat map of the areas you visit often. Unless you go into your phones privacy settings and turn off the frequent locations tracker, it will retain a roadmap of your life.

Watching the detectives

Before the advent of all this technology, attorneys involved in injury or worker compensation cases would frequently hire detectives to investigate the claims.

Now, however, all of the apps, smartphones and the like can double as a very effective detective. Due to the growth of social media over the past decade, the general rule now is that courts will allow relevant posts and information from social media to be used as evidence in the courtroom.

Claiming a serious injury? Facebook posts showing you actively enjoying a Caribbean vacation is a sure way to torpedo a case.

Even if you’re telling the truth, the information could at least raise questions. If you’re claiming that an injury from an accident prevents you from exercising and the fitness app you downloaded prior to the accident doesn’t show much activity, then you could have trouble. Perhaps you intended to start exercising but the accident prevented it – the app’s information still raises questions that could hurt your case or go to the issue of credibility.

Bottom line: You should assume that anything you post or allow to be collected about you can find its way into a courtroom.

Invading your privacy

At this point you may be wondering, “How do these attorneys get this information?’

Answer: If material on a social media site or some other device is determined by the court to be potentially relevant, then the court may allow the opposing attorney to get your passwords and have a forensic expert comb over your device or account. Depending on what’s found, there could be further arguments before a judge regarding what material can be used.

Using your own laptop or smartphone for work? Get ready to turn it over so an information search can be conducted.

It’s also good to assume that even if you erase something, it’s not really gone. If a judge allows it, attorneys can seek information directly from Internet service providers and social media sites.

As technology evolves, it’s going to be increasingly important for all of us to understand the trade-off between privacy and convenience.

Smart TVs that accept voice commands are a prime example. These TVs are always listening for commands, which are sent over the Internet to a processing center so they can be carried out. Manufacturers claim other chatter in the room doesn’t get sent out as well, but it’s unclear how much is going over the web.

I’m not advising anyone to toss their iPhones or stop using apps. But if you are involved in a lawsuit, you definitely want an attorney who is up to speed on electronic and social media discovery and how they can be used.

And when thinking about the privacy of your social media activities, consider the technology you’re using and make sure you’d be OK if the widest possible audience could see what you’re posting and know what you’re doing.

McNees Wallace & Nurick LLC attorney James J. Franklin’s practice includes personal injury law and he also represents commercial, business, and individual clients in a wide array of disputes in state and federal courts as well as in alternative dispute resolutions. He can be reached at 717-237-5375 or at

© 2015 McNees Wallace & Nurick LLC 

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