Data Ownership: Legalities Concerning Wearable Technologies

Introduction

In a November 2019 press release, Fitbit announced that Google LLC had agreed to acquire Fitbit for 2.1 billion dollars. Google’s acquisition of the second-largest fitness tracking company emphasizes the economic and social value of the wearable health industry. It also points to the social and legal challenges ahead as the personal health data of millions of Fitbit users will fall into the hands of one of the key business entities responsible for collecting and processing extensive amounts of data from Internet users. In announcing the acquisition, Fitbit’s co-founder and CEO expressed that a motivating factor for the acquisition lies in Google’s ability to accelerate innovation and to make health more accessible to everyone at a faster rate (Fitbit, 2019). The announcement further states that Fitbit users will continue to have control of their data, the company never sells personal information, and Google will not use Fitbit health and wellness data for Google ads (Austin, 2019; Fitbit, 2019). Thus jointly, Google and Fitbit appear to acknowledge at least some of the privacy and social implications inherent in the collection of vast amounts of personal data.

Undoubtedly, advances in wearable technology and aggregated consumer-generated health and fitness data yield insights that can transform the health care industry and improve the wellbeing of society at large. Armed with new data sources and analytics on consumer fitness and health behaviors, companies are developing devices and services to solve some of health care’s biggest challenges. For instance, health providers can monitor patients remotely with life-saving implantable devices such as pacemakers (Rowe, 2018). However, many of the companies in the wearable technology space are new entrants to the health industry. They are diverse and include employers and established companies such as Google and startups. Employers are an especially interesting addition to the digital health care ecosystem as their involvement adds a layer of privacy challenges as the personal and work life of employees become more intertwined. Through corporate wellness programs, employers are providing employees with health and fitness trackers to motivate them to make good lifestyle choices. In return, these companies look to improve the health and productivity of their employees while reducing insurance and other health-related costs.

Beyond innovation and accessible health services, the Google Fitbit acquisition shows the promising economic outlook of the wearable health and fitness industry. In the last four years alone the wearable industry has tripled (Phaneuf, 2020) and the global market forecasts for fitness trackers is five billion dollars by the year 2025 (Research and Markets, 2020). As with any disruptive technology, innovation in health and fitness technology offers extraordinary opportunities and challenges. For individuals, wearable technologies provide an avenue to take control of their health by moving beyond being mere consumers of information to co-creators of data that empower them to make smarter and healthier choices.

To facilitate a real-time understanding of consumer health and fitness behaviors, companies are continuously collecting personal information through wearable health technologies. With the constant collection of personal information, several legal concerns such as privacy, security, and intellectual property rights emerge. Because information technology innovation in health care is developing rapidly, current laws, especially in the United States, do not adequately address these emerging issues. This chapter provides an overview of the legalities surrounding wearable health technology with an emphasis on the meaning of data ownership and who owns data generated by wearable health or fitness technology. Further, the author introduces principles of joint ownership in copyright and patent law to provide consumers with some level of control over their health and fitness data.