Wary About Wearables: Potential for the Exploitation of Wearable Health Technology Through Employee Discrimination and Sales to Third Parties

Abstract

The wearable health technology market is booming due to its potential to capitalize on the acquisition of real-time health metrics and effect positive lifestyle changes. However, dangers arise from the continuous monitoring, tracking, and recording of user data, as it allows wearable health technology companies to potentially exploit user data through third-party sales. There remain ambiguous characterizations of wearable health devices as either electronic communication services or remote computing services and wearable health data as either content or non-content under the Stored Communications Act (SCA). In 2012, the FTC revealed that twelve health and fitness apps sold user data to seventy-six different third parties, bringing the issue of health data transmission to the forefront. Here, we investigate the potential misuse of wearable health technology data for inappropriate monitoring, informal screening, and potential discriminatory actions against employees. We evaluate the shortcomings of the Americans with Disabilities Act (ADA), Equal Employment Opportunity Commission (EEOC), and Genetic Information Nondiscrimination Act (GINA) in clearly delineating the role of wearable health data.