Rishabh Saumya and Gayatri Singh
Introduction
The leap of technology from our desk to our wrist is quite remarkable. From measuring our heartbeat to calculating our footsteps, wearable devices, gradually, are becoming an essential fitness accessory among health-conscious folks. These activity tracking devices are equipped with wearable technology and are marketed for their health tracking benefits. Their owners carry/wear them most of the time, allowing these devices to carry unique, personal, and continuous data. The expanding interest in health-tracking devices can be witnessed by the fact that the global market of wearable devices is expected to grow to almost $70 billion by 2025. The increasing use of wearable technology is now being utilized by lawyers and considered by courts all over the world. The data recovered from these devices is being used by the investigating authorities and legal fraternity in order to prove/disprove the contested facts in cases pertaining to intoxication, murder, rape, personal injury, etc.
Thus, in view of the increasing use of wearable technology, the present article discusses the evidentiary value and admissibility of data recovered from these devices in the context of the Indian Judicial system and provides further suggestions to decrease the susceptible misuse of the process, due to lack of guidelines on the matter concerned.
A succinct description of a wearable device and its functioning
Before treading further, it would be crucial to learn about what a “Wearable” actually is? Wearables can be defined as “devices worn, applied, or ingested that are designed to measure or capture health-related data in digital format without intervention by the subject and their associated apps.” Wearables, also known as ‘smart jewelry’, are powered by microprocessors, with the ability to send and receive data via the Internet. Devices, like smartwatches and fitness bands, gather and share data about the physical activities of its user, using sensors which are embedded in the device such as an accelerometer (measures device acceleration), barometer (measures atmospheric pressure), gyroscope (records orientation), and many others.The accumulated data, also known as Electronically Stored Information (ESI), is stored in cloud space and can be retrieved and presented further in the form of evidence.
Instances in Contemporary Countries
A law firm in Calgary Canada used their client’s data, collected from her wearable device, in a case of personal injury to “to show that her activity level is less and compromised as a result of her injury”. It is the first known case where data retrieved from wearable devices has been used in litigation.
During the investigation of crimes pertaining to murder and missing persons, data garnered from wearables (i.e., geolocation, distance travelled and spikes in the heartbeat of the user) have been proven quite fruitful. In a staggering case of San Jose, America, a 90-year-old man was convicted for the offence of murder of his step-daughter. The police used data retrieved from the Fitbit device of the deceased to prove murder, which showed the sudden spike in her heart rates, ultimately slowing rapidly and stopping at 3:28 p.m., about five minutes before the convict left the house. Thus, the final heart rhythm recorded by the fitness device proved to be a key element in proving the offence of murder, by the prosecution.
Contemplating the admissibility in the scenario of Indian Judiciary:
Electronic evidences are now admissible by the virtue of S. 65B of Indian Evidence Act. Though, no instances of admissibility of evidence extracted from wearables has been reported yet, one cannot overlook the future prospects in this regard. The Evidence act, enacted more than a century ago, is still evolving with technological advancement.
The concept of electronic evidence has been introduced through the Information Technology Act, 2000 [IT Act]. Further amendments were made in the IT Act, Indian Penal Code, 1860, and some other related provisions with regards to electronic evidence. As per Section 2(t) of the IT Act, electronic record means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche. Electronic records can be treated as evidence under Section 3 of the Act which says that ‘evidence’ means and includes all documents including electronic records produced for the inspection of the Court; such records are called documentary evidence.
The detailed description of the user’s physical activities documented by wearables, is compiled and stored in cloud storage, which should be considered as primary evidence. However, it is practically impossible to bring the concerned data which is stored in abstract form, in front of the court. Therefore, Courts have to consider the aforementioned data as secondary evidence. In case of ‘Arjun Panditrao Khotkar v. Kailash Kushanrao & Ors.’ it was stated that these types of evidence can be printed, recorded, or can be copied in optical or magnetic media but the admissibility can only be made possible by providing a certificate under Section 65B of the Evidence Act, 1872.
Putting the precondition of providing certification for the data retrieved from the device is rooted in the fact that the process of generating the computer output is susceptible to tampering, transposition and alteration. However, the said judgement is silent about the stage when certificate is needed to be produced before the court. It also doesn’t talk about the stage of trial where the court should draw a conclusion that the party is incapable of producing the certificate and consequently, step in to summon the evidence.
The apprehensions pertaining to the susceptibility of tampering of electronic evidence has been expressed by the court at multiple occasions. The guidelines for extraction, processing and handling of such evidence into actionable intelligence should be laid down comprehensively otherwise in absence of a framework in this regard, the collection of such evidence would not be conducted accurately and will affect the crucial data or the concerned device hence, posing difficultly for the litigators to prove the integrity of such evidence before the court. Currently, there are no exhaustive rules which lay down to what extent such data would be admissible or would prior permission of the device holder would be required so that it would not result in self-incrimination of the device holder.
Way Forward
Albeit the data recovered can be quite beneficial in proving certain offenses, however, if done erroneously, has the potential to misdirect or even harm the whole course of the case. Due to the gaping vacuum in the existing legislation pertaining to procuring the wearable, it might pose challenges while considering the admissibility of such evidence. Karnataka High Court in an attempt to keep in pace with the innovative technology, has issued guidelines regarding the manner of carrying out a search and/or for preservations of the evidence gathered during the search of electronic equipment. The High Court while providing instructions, asserted that during the investigation, the investigation officer should be accompanied by a qualified forensic examiner and the procurement of such devices should be conducted under the aegis of an expert. Though the guidelines did not explicitly mention procuring wearables, they can be used as a reference for enacting a dedicated legislative guideline pertaining to procurement of such devices.
According to an initiative taken by Ministry of electronics and Information technology (MeitY), for the appointment of experts for electronic evidence, MeitY will provide assistance to the prosecutor and the investigators as per the requirement. In addition to it, the Information Technology Act, 2000 authorizes the Central Government under Section 79A, to appraise any agency or department of the Central/ State government as an Examiner of Electronic Evidence for the purposes of providing expert opinion on electronic form evidence before any court or other authority. However, it seems like the journey of this scheme has evolved solely on paper.
Fastened to a user’s body, the wearables provide a unique peep inside into the lives of the person wearing them. The untapped and increasing potential of the use of such devices in litigation cannot be ignored. We should be susceptible to the admissibility of this kind of evidence as their use in day to day lives of people is continuously surging. As a non-traditional mode of evidence, the standard of proof of its authenticity and accuracy has to be more stringent as compared to other documentary evidence. As innovations are outpacing the existing legal framework, our rules should be prepared beforehand in order to avoid the void of legislation on the matter concerned.
[The authors are 4th-year law students at Jamia Millia Islamia.]