They can watch your heart now, too

by on July 14, 2017 at 6:46 am in Law, Web/Tech | Permalink

An Ohio judge has ruled that data from a pacemaker can be used in court.

Defendant Ross Compton, who faces aggravated arson charges, claims he was woken by a fire at home, packed a case, broke a window and threw out the bag.

A cardiologist told police his explanation was “highly improbable” based on his heart rate and cardiac rhythms at the time.

Mr Compton’s lawyer said allowing pacemaker evidence expanded government snooping into private data.

Here is the full story, and here is an appalling add-on:

According to local paper Journal News, Judge Charles Pater said: “There is a lot of other information about things that may characterise the inside of my body that I would much prefer to keep private rather than how my heart is beating. It is just not that big of a deal.”

Via Michelle Dawson.  And here is an article about retail interference with brain implants.

1 chuck martel July 14, 2017 at 6:57 am

In a similar vein, a prison escapee was apprehended after being on the loose for 25 years through the use of facial recognition technology: http://www.startribune.com/dmv-facial-recognition-device-in-nevada-nabs-92-prison-escapee-from-minn/434083743/

It’s good to know about this important event but there’s never notice of instances where the technology fails to make the match or, even more important, makes an incorrect match, which is statistically certain to occur.

2 Veobaum July 14, 2017 at 10:07 am

Yes. There seems to be a long lag with new “truth detection” technologies before sensitivity and specificity get explored enough to make policy changes around their use (if you can beat the entrenched parties).

3 JMCSF July 14, 2017 at 7:03 am

I wonder how this court would rule on the hypothetical technology “neural lace”, which Elon Musk has discussed.

4 Troll Me July 16, 2017 at 1:59 pm

I don’t remember the references (I guess I read it on the internet somewhere), but to my knowledge, one US court is documented as rejecting use of forced neural recording for use as a lie estimation test and the Delhi police are reported at least once as having forcibly used similar technology without specification as to whether the data was admissible in court.

I am not aware of any efforts ever to challenge rejection of admissibility of such evidence at any higher level, which tends to reduce/prevent information or precedents on related subjects.

5 Eric July 14, 2017 at 7:31 am

An analogue happened in the 1975 Columbo episode “Troubled Waters”. That murderer was hooked up to an EKG. Was the EKG result private data? I don’t remember whether it was considered valid evidence (I think yes), but since it was a cruise ship, US law / evidentiary procedure might not have applied.

6 Ricardo July 14, 2017 at 7:37 am

There was also a “Monk” episode that used an EKG record to identify the culprit…

7 Bill July 14, 2017 at 7:40 am

There was also a so fake, fictional show where a foreign government hacked into a political party’s email server.

8 The Other Jim July 14, 2017 at 10:04 am

Only one political party though.

The one that was stupid enough to click on a phishing email link.

I know, I know. Talk about straining credibility. As if a campaign manager would ever be that retarded.

9 Bill July 14, 2017 at 10:23 am

Are you sure that when you clicked on this website you were not stupid enough to click on a phishing link. People click on email links all the time, which explains why they are used. and why the bait is cleverly disguised to be legitimate.

And, did you know that Loretta Lynch is responsible for this because she let that women lawyer into the country with a visa.

10 Bill July 14, 2017 at 7:38 am

+1

11 rayward July 14, 2017 at 8:08 am

So you say you want 24/7 health monitoring. Maybe not. The legal issue is whether there is an expectation of privacy with regard to information such as heart rate. HIPAA is supposed to safeguard the privacy of health information, while this judge believes there is no expectation of privacy, HIPAA notwithstanding. Is there an expectation of privacy regarding any personal information in a world where people share the most intimate information about themselves? Can one share such information with “friends” and then expect it to be kept private? Should there be a different standard for people (like me) who have never been on social media?

12 Sure July 14, 2017 at 9:03 am

HIPAA specifically excludes warrants, once a warrant is issued, the hospital or doctor must disclose the information through proper channels. What is appropriate for a warrant is not part of HIPAA. In general, the public wants doctors to prevent crimes and bring criminals to justice, maintaining the trust of the public is much more important to health in our society. Changing this would first require society to reprioritize privacy concerns.

13 rayward July 14, 2017 at 10:52 am

Many states have a doctor-patient privilege, which should extend beyond the implant of the pacemaker; after all, the EP will rely on the data in the pacemaker for further treatment. Do the EP and the patient reasonably expect the privilege to apply to that data? I say they do.

14 Vivian Darkbloom July 14, 2017 at 12:23 pm

It appears that the information was obtained directly from the pacemaker—not from the defendant’s physician. The cardiologist in question was also not the defendant’s doctor—he was an expert called by the prosecution to interpret the pacemaker data. So, this would appear to have nothing to do with the doctor/physician privilege which is a product of state statute, not the common law and is often quite limited in scope.

It also appears that the evidence was presented to rebut an assertion made by the defendant rather than offered by the prosecution in its affirmative case.

Finally, I would think a better analogy would be the expectation of privacy with respect to required blood or urine tests. These present more invasive physical intrustions and there is no constitutional safeguard against them.

15 Troll Me July 16, 2017 at 1:53 pm

Definitions of “invasive” as medical terminology are borderline fraudulent relative to common usage of the word.

FYI, just in case you don’t know.

“Invasive” basically means that skin got cut, which means that taking a blood sample or perhaps even a scratch-test for allergies could be called “invasive”, while a mandatory extended EEG reading under interrogation would not be defined as “invasive” according to that medical terminology.

As such, more suitable terminology for legal purposes would be appropriate. Taking someone’s heart rate for an extended period of time in many ways can be extremely more invasive in a variety of ways than a blood test. (Which is a different question from whether the legal decision regarding admissibility of evidence was reasonable.)

16 Sure July 14, 2017 at 12:44 pm

Privilege is useful for saying a warrant is not valid, but even in states with privilege once a judge buys “compelling need” it is pretty much over,

Virtually all states have explicit exceptions over criminal evidence (e.g. reporting gunshot wounds), so medical data that ultimately derives from probable criminal conduct is less protected. Solving crimes has been a public priority over confidentiality for some time; changing this requires changing laws, precedents, and most importantly, public opinion.

17 rayward July 14, 2017 at 8:57 am

Cowen: “And here is an article about retail interference with brain implants”. Could it be that Cowen is using a form of mind meld with his blog entries to turn ordinary law abiding people like me against democracy: https://www.vox.com/the-big-idea/2017/7/14/15967788/democracy-shackles-james-buchanan-intellectual-history-maclean Oh, my!

18 The Centrist July 14, 2017 at 10:40 am

Why on earth would you read Vox?

19 djw July 14, 2017 at 10:52 am

Its like passing a car wreck on the free-way. You know you should just go about your business, but sometimes it is hard to look away.

20 rayward July 14, 2017 at 11:00 am

You might read the article (co-written by Henry Farrell and Steven Teles), which objects to/criticizes the recent book by Nancy MacLean (Democracy in Chains) that attacks James Buchanan and Cowen for participating in a cult intended to undermine democracy. On the other hand, you might read this essay by David Brooks (https://www.nytimes.com/2017/07/14/opinion/donald-trump-family-ethics.html) and this article about Ayn Rand disciples (https://www.nytimes.com/2017/07/13/business/ayn-rand-business-politics-uber-kalanick.html) and try to discern a connection between the two.

21 The Centrist July 14, 2017 at 12:11 pm

Sorry, I didn’t see the need for Brooks to spout off on “naked capitalism”, as though there’s a connection between the greedy punk Donald Jr., and the market economy, such that the former somehow represents the latter.

And though I don’t like the Trumps, I don’t they are a special kind of odious. I suspect that Obama or Clinton would use dirt collected in Russia (or elsewhere) on their political opponents, too, only they’re smarter and less gauche.

22 Thomas July 14, 2017 at 3:29 pm

Is it not established that the Clinton campaign received, from the government of Ukraine via Alexandra Chalupa, information about Paul Manafort which was subsequently leaked? There is more evidence of this than of Trump Jr. receiving any information about Clinton from the Russian lawyer, as the dirty information on Manafort was actually leaked.

23 Daniel Weber July 14, 2017 at 1:05 pm

Brain implants are seriously scary technology. If you want to see how brutal a dictator can be, have a world where I can actually tell if you are lying. Imagine the political party you least like performing loyalty oaths on people using that tech.

24 Troll Me July 16, 2017 at 1:46 pm

Or ‘train’ you to believe any lie … or ‘train’ you to be able to do so on not much more than a moment’s notice.

I’m sure there are all sorts of wannabe Stalins out there who might consider to do such a thing if they thought it might be possible.

25 Ray Lopez July 14, 2017 at 9:40 am

You could say this is a news story about a man who tried to commit arson but he just didn’t put his heart into it.

26 Bill July 14, 2017 at 9:47 am

+1 Or, he had a change of heart.

27 Dick the Butcher July 14, 2017 at 11:46 am

Is it (admissible in court) proof that the perp is not a heartless bastard?

Sorry.

28 msgkings July 14, 2017 at 12:18 pm

The heart wants what it wants, in this case it wants to burn things down

29 Hazel Meade July 14, 2017 at 10:01 am

I’m not sure how a pacemaker works, but isn’t it possible that it might interfere with one’s heart rate becoming elevated during an emergency? It’s supposed to regulate the heart rate, no?

30 Borjigid July 14, 2017 at 10:03 am

I think that a pacemaker keeps your heart from falling below a certain number of beats per minute. I don’t think it would stop your heart from beating more than that.

31 derek July 14, 2017 at 12:44 pm

I got a pacemaker at a too young age, and at the regular checkups they would ask about elevated rates at regular intervals. They were when I played hockey.

Mine doesn’t log heart rates, but it logs high rate events above a threshold.

32 aMichael July 14, 2017 at 5:57 pm

It depends on the reason for having one. A close friend has one because he has heart block, meaning the bottom chambers don’t receive the signal from the top chambers of when to beat. In his case, the pacemaker is just serving as the conduit between the top and bottom chambers. For heart transplant patients (at least with earlier transplants), the pacemaker is doing all of the work of telling the heart how fast to beat. Some can sense motion and then will tell the heart to beat faster under the assumption that movement means there’s more demand for oxygen in the patient’s body due to physical exertion.

33 Thomas July 14, 2017 at 10:06 am

The fifth amendment protects defendants from self-incrimination, but there is a distinction between physical evidence and evidence of the mind. A physical key to a safe containing a written confession can be required to be turned over, but that same confession cannot be legally demanded of a defendant in testimony. Insofar as the beating of the heart is directed by the mind, I wonder at what point the mind stops and the physical body begins? I believe that a warrant to acquire evidence via a mind-reading technology would be unconstitutional, but what is it that distinguishes overt mind-reading from mind-reading via proxy, and where does it end? Could the government subpoena the data from a technology that was implanted in the spinal column for whatever reason, using the record of electrical impulses to compel incriminating evidence? Could the government compel the implantation of such a device? What about the use of data from a device implanted in a spouse, in a doctor, in a defendant’s attorney?

34 Bill July 14, 2017 at 10:20 am

So, an Iphone tracker data can be subpoenaed, but data from an implantable device that tracks same data can’t be subject to a warranted search?

35 Thomas July 14, 2017 at 10:24 am

I imagine that both can be subpoenaed, but what we are talking about here is data that is derived from the processes of the brain, which is much more “self-incrimination” than data produced by a device – the brain doesn’t create location pings.

36 Bill July 14, 2017 at 10:27 am

OK, so what you are really saying is that you could not force someone to be hypnotized to the truth, which could be “self” incriminating.

But, what is “self”. Is “self” chemical connections between neurons?

37 Mark Thorson July 14, 2017 at 6:26 pm

Are you making a distinction between data gathered from the brain vs. data gathered for example from heartbeat? They are both physiological signals, but one may be distinguished if you are a dualist — i.e. you believe there is such a thing as a “soul”. As a monist, I think they are exactly the same.

My interest is a bit different. One of my projects is a sensor for blood flow. It could be built into something like an Apple Watch (but mine would consume 100X less power than what they’re using now to sense pulse — a big deal in the power budget for a watch). By measuring the dicrotic notch, it could reveal in a very timely fashion risky behavior like smoking a cigarette or eating a Krispy Kreme donut, which adversely affect endothelial function, which is predictive of cardiovascular disease, type 2 diabetes, and maybe Alzheimer’s disease. Should we give that information to your medical insurance company? Not my department. We only make sensors.

38 Pshrnk July 14, 2017 at 11:43 am

“A physical key to a safe containing a written confession can be required to be turned over”

And when the key to the safe is an iris or fingerprint scan?

39 Bill July 14, 2017 at 12:40 pm

It’s on public display and is not testimony.

40 Daniel Weber July 14, 2017 at 12:52 pm

They can physically force it to happen, unlike merely ordering you to do it under threat of contempt of court.

41 rluser July 15, 2017 at 8:19 am

Long live the password

42 Cyrus July 14, 2017 at 6:14 pm

If it were already implanted (with the defendant’s consent), then any record it creates would be, like a written record, subject to subpoena.
Coercive installation of the device should be unconstitutional.
Surreptitious installation of the device should also be unconstitutional. (With the current Supreme Court drawing the line for warrantless bodily intrusion somewhere between a urine sample and a blood sample.)

The bottom line isn’t much different from concerns today about your digital photo collection.
It is subject to subpoena.
If that bothers you, certainly don’t keep it in the cloud.
Do encrypt it.
Do use access controls that include a factor based on something you know, because passwords have fifth amendment protection, but physical factors do not.

43 Thiago Ribeiro July 14, 2017 at 11:10 am

“Who knows what evil lurks in the hearts of men?” The Court knows.

44 Thiago Ribeiro July 14, 2017 at 11:11 am

Cardiologists, too, I guess.

45 Thanatos Savehn July 14, 2017 at 11:20 am

SCOTUS may have spotted a right to privacy in the Constitution and HIPAA may try to secure it in the health setting but technology is overcoming both as obstacles to finding out what you’ve been up to and health-wise where you’re going: https://www.usenix.org/system/files/conference/usenixsecurity16/sec16_paper_backes-privacy.pdf

The fact is that you’ve been going about your whole life shedding DNA in public spaces and that DNA, thanks to epigenetics modifications like DNA methylation, contains a very detailed record of what you’ve been smoking, what bacterial infection you picked up in Boys’ Town on Spring Break, etc.; and it’s free for anyone to pick up and sequence. Rather than being appalled by the truth of it you should start thinking about what a post-privacy world will look like.

46 Daniel Weber July 14, 2017 at 12:58 pm

English law going back centuries, well before the USA was settled, is that the courts have the rights to all evidence. All this is following precedent.

If you want to start getting things excluded, you are going to need legislative fixes explicitly putting them out of bounds. Maybe we need that now that we live in such a data-rich world. Most Americans seem happy with the balance of requiring a court order or warrant.

47 Troll Me July 16, 2017 at 1:38 pm

You overstate what is likely to be interpretable from a DNA sample, unless you refer to cases which involve committing crimes or doing so with a warrant.

48 Todd K July 14, 2017 at 11:34 am

These government intrusions are making it harder and harder for me to make an honest living as a money launderer!

49 Troll Me July 16, 2017 at 1:40 pm

Also more difficult to buy an anniversary gift for your wife without the NSA et al knowing where you bought it, how much it cost and who you spoke with before and after the purchase, all before your wife has even seen the wrapping.

50 Boonton July 14, 2017 at 11:36 am

“A cardiologist told police his explanation was “highly improbable” based on his heart rate and cardiac rhythms at the time.”

How does he know this? I can imagine that perhaps some people, faced with an emergency, simply respond in a sensible and level headed manner. Have cardiologists pulled the pacemaker records of those who went through accidents, emergencies and other events and found heart rates always soar? Or is he just guessing?

51 Anonymous July 14, 2017 at 11:46 am

Right, this sounds even less credible than a lie detector test. Those presumably are at least operated by people with experience more than n=1 and measure more than one thing.

52 Thiago Ribeiro July 14, 2017 at 11:55 am

1) It is circumstancial, yes.
2) I guess there is usually some difference from sleep to physical extertion (he probably did no pack his case leisurely).
3) He can bring his own expert to say he saw someone defeat 100 ninjas with no cardiac rhythm changes at all. This is how American trials work.

53 Daniel Weber July 14, 2017 at 1:02 pm

I too read it as his recorded heart rate was indicating he was moving all over the house preparing his arson, instead of laying quietly in bed and suddenly awoke by the fire. I’m willing to hear otherwise, but it seems like something that’s easily provided by heart logs.

A pedometer would log the same thing. If a FitBit shows someone moving continuously while they claim they were sound asleep and not murdering their neighbor, there’s no reason under current law not to admit that evidence.

54 Thiago Ribeiro July 14, 2017 at 2:39 pm

I think so.

55 Todd K July 14, 2017 at 4:43 pm

Sherlock Holmes said he was retiring because technology was replacing his skills, and that was 90 years ago.

Are you now trying to put Columbo out of work?

56 b9n10nt July 14, 2017 at 1:11 pm

I wanna pile on here: the most urgent problem in criminal law is not an erosion of privacy before the Law. Rather, it is prosecutorial power. One aspect of this power (besides many others: lavish funding compared to defense, plea-bargaining as a privileged “play”, misaligned incentives to prosecute vs. achieve justice, Drug War nonsense) is the ability for prosecutors to call on essentially in-house forensic scientists to legitimatize shaky evidence: fingerprinting and lie-detectors.

So pacemaker data wouldn’t be a problem but for the likelihood that forensics skews toward prosecutors for non-scientific reasons.

57 Dick the Butcher July 14, 2017 at 11:48 am

Don’t do the crime if you can’t do the time.

58 djw July 14, 2017 at 3:50 pm

I sleep with a heart rate monitor, and I notice that there are spikes of activity throughout the evening. Dreaming? I don’t know, but its fairly common.

How does the cardiologist know that this is not what happened here? Does he know this beyond a reasonable doubt?

59 Lou the Jew July 14, 2017 at 4:41 pm

The test for admissibility is whether the offered evidence makes a fact in dispute “more or less probable than it would be without the evidence”. See Evidence Rule 401. So if something happens (or doesn’t happen) 50.1% of the time it is admissible. Also it is jury, and not the witness, that, after taking into account all of the evidence, must be convinced that the prosecution has proven its case beyond a reasonable doubt.

60 Troll Me July 16, 2017 at 1:33 pm

According to a similar theory, a camera in every pair of underwear would stop (insert here).

The black/white continuum comprising the possibility set in such regards certainly mandates that the zero-surveillance approach must be rejected.

61 Shaun Marsh July 17, 2017 at 8:28 pm

It’s really scary things that are been discussed above. Anyhow, I don’t think this is anything new as every now and then we have seen something on similar lines. I like to just be calm instead of shouting over these things. Anyhow, I do feel that often these things have huge impact on things and as a trader; I feel it’s meant to have big impact. It’s easier for me with broker like OctaFX who gives me day to day market updates and analysis along with trading tips.

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