Wearables and Health Tracking – An Insurer’s Dream or Nightmare?Author : Karen Jones and Dominic Flannery

Wearables such as FitBits are turning our bodies into real-time health data sources. In Part Three of our exclusive series with ANZIIF: ‘How Advances in Medical Technology Are Impacting Insurance’, Karen Jones (Partner) and Dominic Flannery (Special Counsel) provide commentary on the  impending impact of this technology on the insurance landscape.

Wouldn’t it be incredible if you could receive real-time feedback on your health? For diabetics, constant monitoring of glucose levels and for those at risk of heart disease, alerts warning of cardiac irregularities after strenuous activity.

With the many benefits this type of service could bring to society, it’s little wonder the technology sector is investing millions of dollars into sophisticated wearable medical devices. To illustrate, Google’s sister company, Verily, has been focussed on adapting technology to turn the everyday contact lens into more than a visual device, able to monitor diabetics glucose levels.[1]

From the Medical Sector to the Consumer

The requirement for wearables in the medical field has also translated to everyday use by consumers in the form of smart watches and fitness trackers.

With wearable technology currently a ‘hot’ item, an estimated 50% of Australians buying the technology and creating their own cache of personalised wellbeing data, it’s little wonder tech companies are increasingly interested in the future potential for wearable technology, expanding the type of data collated.

With the parallel growth of big data analytics (examining large amounts of information to uncover patterns, correlations and trends) in human health, historical personal data can be matched with real-time information from these devices to create a ‘live’ feedback of a person’s health.

The Insurance Industry Response – It’s All About The Data

Simultaneously, the insurance industry has incorporated wearable technology into its business models, with some health insurance companies offering reductions in premiums and other enticements for those willing to sign over their personal data proving their involvement in fitness activities.[2]  This now allows consumers the options to reduce their health insurance premiums by sharing their FitBit data to confirm they regularly exercise. However, the question remains regarding the accuracy of data collected, and safety of this personal data.

Do Wearables Mitigate Risk or Increase Risk?

While consumers are evidently keen to monitor their own health and wellbeing data, given the number of devices estimated to be owned in Australia, there are concerns about the security of these devices.  Reports from as early as 2014, published by Samsung, one of the large players in the smart watch sphere, warned businesses that wearable technology may increase the occurrence of security breaches to mobile technologies, noting that wearable technology often automatically syncs with mobile phones.[3]

More recently, reports are surfacing that many mobile technologies, including wearables, are able to be ‘hacked’ using sounds and frequencies that trigger accelerometers.[4]  Other studies have shown that most wearable fitness trackers are unable to secure the data collected.[5]  With devices monitoring a user’s movement by way of GPS signals, some wearable technology may be capable of acting as a “virtual spy”, risking invasion to consumers’ privacy.

Further, given the complexity of the human body, the use of fitness data to predict health outcomes at this time seems risky at best, considering the multitude of factors these devices can’t track (for example smoking, alcohol intake and diet).

With monetary and other incentives attached to the use of these devices to ‘prove’ fitness goals, it’s inevitable some consumers will try to cheat the system in order to obtain an advantage.[6]

A Legal Perspective

Data from wearable devices has potential for use in court cases.  In 2014, a Canadian court allowed lawyers to bring into evidence collated data in personal injury proceedings obtained from a sample of women of a particular age to show that the plaintiff, who was previously a personal trainer, was less active since an accident.[7]

More recently in Australia, a Court was asked to consider sleep data from wearable technology in family law proceedings.[8]  While ultimately the Court did not accept the conclusions put forward, it is conceivable that data from wearable devices will find itself admitted to Australian Courts in the future.

Beyond proving a person’s loss in personal injury proceedings, perhaps where an avid user of a wearable device sustains injury, the data might also be used to demonstrate the absence of injury where a person claiming injury is more active than suggested.[9]

Dream or Nightmare?

Wearables such as FitBits are turning our bodies into real-time health data sources however this information isn’t currently being used to its full ability.  With companies like Google and Apple increasingly working with health authorities and creating their own wearables, it is only a matter of time before the health data gathered from your body will be used to give feedback to you or your medical provider.

An individual’s health data could be compared to ‘big data’ or data sets from the population from people with similar medical histories and symptoms to determine whether there is a present or future health risk.

Of particular note are the potential privacy issues all this new technology brings.  Whilst there are a number of benefits to all parties involved from data disclosure it also creates a legal battleground considering the current ambiguities in privacy law.

[1] http://www.computerworld.com/article/3066870/wearables/why-a-smart-contact-lens-is-the-ultimate-wearable.html

[2] http://www.qantasnewsroom.com.au/media-releases/qantas-frequent-flyers-to-earn-points-for-walken/

[3] https://anziif.com/members-centre/articles/2015/03/top-3-insurance-risks-of-wearable-technology

[4] http://www.cso.com.au/article/615927/researchers-hack-accelerometer-fake-fitbit-steps-hijack-radio-controlled-car/

[5] https://www.businessinsider.com.au/major-privacy-issues-in-almost-every-fitness-tracker-report-2016-2?r=UK&IR=T

[6] http://www.abc.net.au/news/health/2016-04-09/unfitbit-hacking-your-fitness-data/7307832

[7] https://www.forbes.com/sites/parmyolson/2014/11/16/fitbit-data-court-room-personal-injury-claim/#153eacec7379

[8] Oster v Houli [2015] FCCA 398

[9] https://www.theatlantic.com/technology/archive/2014/11/when-fitbit-is-the-expert-witness/382936/

11/05/2017