The Use Of Wearable Technology Among Athletes And Its Potential Privacy Concerns

• Published date: 08 April 2021
• Subject Matter: Media, Telecoms, IT, Entertainment, Privacy, Technology, Privacy Protection, Sport, New Technology
• Law Firm: Cox & Palmer
• Author: Mr John Alexander 'Sandy' Jenkins

Professional sport has officially arrived in Halifax. The Halifax Hurricanes have been competing in the National Basketball League of Canada since late-2015; the HFX Wanderers almost won the Canadian Premier League in its second season; rumours of a Canadian Football League team coming to Halifax continue to swirl¹; and the Halifax Thunderbirds were at the top of the National Lacrosse League standings until their season was also put on hold. What issues might these young sports franchises face, particularly in light of elevated health concerns related to COVID-19? One might be the privacy concerns of their players through the ever-increasing use of wearable technology.

Wearable technology, sometimes referred to as "wearables", is a growing range of products and associated software that have the ability to collect and monitor fitness and health information. Wearable tech has become prevalent in modern athletics, both amateur and professional. The introduction of wearables in sports opens up a new concern for athlete privacy, as wearables are becoming more sophisticated in their ability to accurately collect sensitive health information, which is no longer solely accessible by the individual and/or their healthcare provider.

What is wearable tech and what does it do?

Wearable technology has extended far beyond what the average Apple Watch or Fitbit user might come to expect. As an example, the MLB Collective Agreement defines wearable tech as "any equipment, program, software, device or attire which is designed to collect and/or analyze information or data related to a Player's health or performance at any location".² Such tech may be able to measure heart rate, breathing rate, speed, reaction time, power, sleep quality, distance, and more. Once collected, data is analyzed to evaluate a wearer's performance and recovery.³

It doesn't stop there. Wearables have been increasingly used in healthcare fields in order to assist with the treatment of patients.⁴ Future versions of wearable technology in sports will likely use some of the same features as the healthcare versions, such as monitoring blood oxygen levels.⁵ Future playbacks on sports broadcasting television could include data collected by wearables to show viewers in real time the speed, force, and impact of any individual athlete.⁶

What's the Big Deal?

Simply put, from a privacy law standpoint, an employee's personal health information is considered among the most sensitive information an employer can possess. In general, the greater the sensitivity of the information in the employer's possession, the greater the expectation on that employer to keep the information safe. As internet-enabled devices with the ability to record and transmit personal information become more widespread, there is a concern regarding how securely the information collected by wearable technology is protected. A study of common fitness trackers conducted in 2016 by Canadian not-for-profit Open Effect demonstrated that many companies, including Fitbit, Garmin, and Jawbone, had significant privacy weaknesses when it came to transmission security and data integrity.⁷ The study...