Fairfax Tech Column

Fairfax Tech Column

19.4.2019 Fairfax Tech Column 142


One of the greatest challenges for lawmakers across the world is keeping up with changes in technology. Nowhere in the job description of a tech innovator does it mention that they should hold back on new ideas until legislation can be put in place. In the highly competitive tech world, new features and devices are brought to market as quickly as possible. Then it is just a matter of waiting for the law to catch up.

This isn’t a new scenario.

When Karl Benz received his motorcar patent in 1886, the list of road rules would have been fairly limited. Once cars started appearing beside horses and bicycles, legislation had to quickly catch up. Even think back to 1983 when shearers wanted to go past a 2.5-inch comb on their shearing handpiece. This new technology needed legislators to step in to legalise the devices.

The latest challenge for lawmakers relates to smartwatches. A woman in Australia has been charged with murder substantially based on the data on her mother-in-law’s smartwatch. The watch showed an activity timeline in contradiction with the daughter-in-law’s detailed evidence. Solicitors for the daughter-in-law are arguing that the smartwatch data cannot be relied upon. In a previous case, a Canadian law firm used data from a fitness tracker to show that a person involved in a personal injury lawsuit had significantly reduced their activity after an accident. This objective measure of movement is seen as more reliable than “I don’t feel like walking out the front door to collect my newspaper.” In another case, a woman in the US was charged with filing a false report when she reported she was asleep in her bed when awoken and sexually assaulted. Her smartwatch data contradicted her stated evidence.

These may be extreme examples and I am sure the vast majority of readers are not about to change murder plans to account for someone wearing a smartwatch but many of us use our smartwatches in everyday life.

The first car I had access to drive as a teenager was my brother’s Valiant and the only music in that was the whistle of air when I wound down the window for my crude form of air conditioning. When my brother went all out and installed a radio, it was a pretty big thrill to wind the dial between the two radio stations available. I am sure lining up the little needle on the dial reduced my driving capabilities but there was no law that said I couldn’t change radio stations. Across the world, different laws apply to smartwatches and driving. Some jurisdictions define a smartwatch as a Visual Display Unit (VDU) and it is illegal to look at it. So looking at the time could land you a fine. Others define the legality based on whether your smartwatch is actually a standalone phone and still others cover a smartwatch in the general category of ‘careless driving’ which leaves it as a subjective decision in relation to legality.

Broader questions about data and storage also come into play. When you fill in your life insurance form and tick the box to say ‘moderate’ physical activity, how long will it be before insurance companies will demand activity logs from the last three months from your smartwatch? Will smartwatch companies start to sell data so that those with reduced physical activity start receiving ads for gym membership! Where will it all end?

Have a great Easter break and feel comfortable in the fact that, for the moment at least, your smartwatch is not tracking how many Easter Eggs you consume over the weekend!

Mathew Dickerson