Nicole Black
In mid-2015 I wrote about an emerging trend where data from wearable mobile devices was being used in the courtroom (nydailyrecord.com/2015/08/14/legal-loop-wearable-tech-data-as-evidence-in-the-courtroom/). In that column I discussed two cases where Fitbit data was used: one where it was offered as evidence to support a personal injury claim and the other where it was used to disprove a complainant’s rape allegations.
Since then, I was unaware of any other reports involving the use of Fitbit or other wearable data being used in a criminal case until last week, when a new case was reported where Fitbit data and other digital evidence was used to support the prosecution of a criminal matter (www. courant.com/news/connecticut/hc-ellington-murder-fit-bit-2017 0422-story.html). This case is particularly interesting since there was so much digital data used by the prosecution to refute the defendant’s version of the events leading to his wife’s death.
In this case, the defendant claimed that his wife had been killed by an intruder and he provided a very detailed version of events leading to her shooting. He alleged that while he was driving to work one morning, he received an alert on his cellphone indicating that his home’s burglar alarm had gone off. So he emailed his boss using his cellphone and indicated he’d be late to work. He then drove home, arriving at approximately 9 a.m., at which point he encountered an intruder with whom he engaged in a struggle.
During the short altercation, he heard his wife come in the garage door and yelled at her to run. He tried to fight off the intruder, but was briefly incapacitated. The defendant then ran after the intruder only to see him shoot and kill his wife. The intruder then incapacitated the defendant again and left their home, at which point the defendant managed to make his way to his car keys, even though he was partially tied up, and activated the panic button for the home’s alarm system.
After obtaining the defendant’s description of the events that lead to the murder, the police obtained warrants for a plethora of electronic evidence, including: 1) cellphone records for the defendant and his wife, 2) computer records from the defendant’s laptop, 3) Facebook records for the defendant, his wife, and his girlfriend, 4) text messages, and 5) Fitbit records for his wife. The amount of evidence gathered by the police from all of these sources was extensive and much of what was discovered contradicted the defendant’s claims and provided evidence regarding his location and his wife’s at given times that differed significantly from the story he told police.
The evidence included:
• Data from the home’s alarm system indicating it hadn’t been activated prior to 10:11 a.m., despite what he’d alleged;
• Geo-location data indicating that the email sent to his boss about being late to work was actually sent from his laptop, not from his cellphone while parked on the side of the road as he’d told police;
• Google search records from 9:18 a.m. showing that after sending that email, he researched his wife’s exercise class schedule at the YMCA;
• Surveillance camera footage showing his wife leaving her class at the YMCA at 9:18 a.m. and cellphone records showing she then made a call that lasted almost four minutes;
• Data from his wife’s Fitbit showing she likely arrived home at 9:23 since she was suddenly active after a period of inactivity between 9:18 and 9:23 a.m., which is when she was presumably driving home;
• Data from the alarm system showing the garage door was opened at 9:23 a.m.;
• Facebook data showing that she posted two videos to Facebook between 9:40 and 9:46 a.m.;
• Fitbit data showing that her last movement was registered at 10:05 a.m.;
• Alarm system data showing that the panic button from the defendant’s car key fob was activated at 10:11, more than an hour after he alleged he’d arrived home and allegedly encountered the intruder.
If nothing else, this case shows what a tangled digital web we weave in the 21st century. Crimes that would have been all but unsolvable in years past due to the lack of physical evidence have now been given a new life in light of the complex digital trails that we leave behind us. Certainly the technology revolution has provided us with incredible benefits, but they often come at the price of privacy. In this case, the governmental intrusion would seem to be warranted. But it’s a fine line in the sand and one that is constantly shifting, for better or for worse.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@ mycase.com.
