Implantable Medical Device Tells All: Uberveillance Gets to the Heart of the Matter
In 2015, I provided evidence at an Australian inquiry into the use of subsection 313(3) of the Telecommunications Act of 1997 by government agencies to disrupt the operation of illegal online services . I stated to the Standing Committee on Infrastructure and Communications that mandatory metadata retention laws meant blanket coverage surveillance for Australians and visitors to Australia. The intent behind asking Australian service providers to keep subscriber search history data for up to two years was to grant government and law enforcement organizations the ability to search Internet Protocol–based records in the event of suspected criminal activity.
Importantly, I told the committee that, while instituting programs of surveillance through metadata retention laws would likely help to speed up criminal investigations, we should also note that every individual is a consumer, and such programs ultimately come back to bite innocent people through some breach of privacy or security. Enter the idea of uberveillance, which, I told the committee, is “exaggerated surveillance” that allows for interference  that I believe is a threat to our human rights . I strongly advised that evoking section 313 of the Telecommunications Act 1997 requires judicial oversight through the process of a search warrant. My recommendations fell on deaf ears, and, today, we even have the government deliberating over whether or not they should relax metadata laws to allow information to be accessed for both criminal and civil litigation , which includes divorces, child custody battles, and business disputes. In June 2017, Australian Prime Minister Malcolm Turnbull even stated that “global social media and messaging companies” need to assist security services’ efforts to fight terrorism by “providing access to encrypted communications” .
Consumer Electronics Leave Digital Data Footprints
Of course, Australia is not alone in having metadata retention laws. Numerous countries have adopted these laws or similar directives since 2005, keeping certain types of data for anywhere between 30 days and indefinitely, although the standard length is somewhere between one and two years. For example, since 2005, Italy has retained subscriber information at Internet cafes for 30 days. I recall traveling to Verona in 2008 for the European Conference on Information Systems, forgetting my passport in my hotel room, and being unable to use an Internet cafe to send a message back home because I was carrying no recognized identity information. When I asked why I was unable to send a simple message, I was handed an antiterrorism information leaflet. Italy also retains telephone data for up to two years and Internet service provider (ISP) data for up to 12 months.
Similarly, the United Kingdom retains all telecommunications data for one to two years. It also maintains postal information (sender, receiver data), banking data for up to seven years, and vehicle movements for up to two years. In Germany, metadata retention was established in 2008 under the directive Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG, but it was overturned in 2010 by the Federal Constitutional Court of Germany, which ruled the law was unconstitutional because it violated a fundamental right, in that correspondence should remain secret. In 2015, this violation was challenged again, and a compromise was reached to retain telecommunications metadata for up to ten weeks. Mandatory data retention in Sweden was challenged by one holdout ISP, Bahnhof, which was threatened with an approximately US$605,000 fine in November 2014 if it did not comply . They defended their stance to protect the privacy and integrity of their customers by offering a no-logs virtual private network free of charge .
Some European Union countries have been deliberating whether to extend metadata retention to chats and social media, but, in the United States, many corporations voluntarily retain subscriber data, including market giants Amazon and Google. It was reported in The Guardian in 2014 that the United States records Internet metadata for not only itself but the world at large through the National Security Agency (NSA) using its MARINA database to conduct pattern-of-life analysis . Additionally, with the Amendments Act in 2008 of the Foreign Intelligence Surveillance Act 1978, the time allotted for warrantless surveillance was increased, and additional provisions were made for emergency eavesdropping. Under section 702 of the Foreign Intelligence Surveillance Act of 1978 Amendments Act, now all American citizens’ metadata is stored. Phone records are kept by the NSA in the MAINWAY telephony metadata collection database , and short message service and other text messaging worldwide are retained in DISHFIRE , .
Emerging Forms of Metadata in an Internet of Things World
The upward movement toward a highly interconnected world through the Web of Things and people  will only mean that even greater amounts of data will be retained by corporations and government agencies around the world, extending beyond traditional forms of telecommunications data (e.g., phone records, e-mail correspondence, Internet search histories, metadata of images, videos, and other forms of multimedia). It should not surprise us that even medical devices are being touted as soon to be connected to the Internet of Things (IoT) . Heart pacemakers, for instance, already send a steady stream of data back to the manufacturer’s data warehouse (Figure 1). Cardiac rhythmic data is stored on the implantable cardioverter-defibrillator’s (ICD’s) memory and is transmitted wirelessly to a home bedside monitor. Via a network connection, the data find their way to the manufacturer’s data store (Figure 2).
In health speak, the ICD set up in the patient’s home is a type of remote monitoring that happens usually when the ICD recipient is in a state of rest, most often while sleeping overnight. It is a bit like how normal computer data backups happen, when network traffic is at its lowest. In the future, an ICD’s proprietary firmware updates may well travel back up to the device, remote from the manufacturer, like installing a Windows operating system update on a desktop. In the following section, we will explore the implications of access to personal cardiac data emanating from heart pacemakers in two cases.
CASE 1: HUGO CAMPOS DENIED ACCESS TO HIS PERSONAL CARDIAC DATA
In 2007, scientist Hugo Campos collapsed at a train station and later was horrified to find out that he had to get an ICD for his genetic heart condition. ICDs usually last about seven years before they require replacement (Figure 3). A few years into wearing the device, being a high-end quantifiedself user who measured his sleep, exercise, and even alcohol consumption, Campos became inquisitive over how he might gain access to the data generated by his ICD (Figure 4). He made some requests to the ICD’s manufacturer and was told that he was unable to receive the information he sought, despite his doctor having full access. Some doctors could even remotely download the patient’s historical data on a mobile app for 24/7 support during emergency situations (Figure 5). Campos’s heart specialist did grant him access to written interrogation reports, but Campos only saw him about once every six months after his conditioned stabilized. Additionally, the logs were of no consequence to him on paper, and the fields and layout were predominantly decipherable only by a doctor (Figure 6).
Dissatisfied by his denied access, Campos took matters into his own hands and purchased a device on eBay that could help him get the data. He also went to a specialist ICD course and then intercepted the cardiac rhythms being recorded . He got to the data stream but realized that to make sense of it from a patient perspective, a patient-centric app had to be built. Campos quickly deduced that regulatory and liability concerns were at the heart of the matter from the manufacturer’s perspective. How does a manufacturer continue to improve its product if it does not continually get feedback from the actual ICDs in the field? If manufacturers offered mobile apps for patients, might patients misread their own diagnoses? Is a manufacturer there to enhance life alone or to make a patient feel better about bearing an ICD? Can an ICD be misused by a patient? Or, in the worst case scenario, what happens in the case of device failure? Or patient death? Would the proof lie onboard? Would the data tell the true story? These are all very interesting questions.
Campos might well have acted to not only get what he wanted (access to his data his own way) but to raise awareness globally as to the type of data being stored remotely by ICDs in patients. He noted in his TEDxCambridge talk in 2011 :
the ICD does a lot more than just prevent a sudden cardiac arrest: it collects a lot of data about its own function and about the patient’s clinical status; it monitors its own battery life; the amount of time it takes to deliver a life-saving shock; it monitors a patient’s heart rhythm, daily activity; and even looks at variations in chest impedance to look if there is build-up of fluids in the chest; so it is a pretty complex little computer you have built into your body. Unfortunately, none of this invaluable data is available to the patient who originates it. I have absolutely no access to it, no knowledge of it.
Doctors, on the other hand, have full 24/7 unrestricted access to this information; even some of the manufacturers of these medical devices offer the ability for doctors to access this information through mobile devices. Compare this with the patients’ experience who have no access to this information. The best we can do is to get a printout or a hardcopy of an interrogation report when you go into the doctor’s office.
CASE 2: ROSS COMPTON’S PACEMAKER DATA IS SUBPOENAED FOR CRIMINAL INVESTIGATIONS
Enter the Ross Compton case of Middletown, Ohio. M.G. Michael and I have dubbed it one of the first authentic uberveillance cases in the world, because the technology was not just wearable but embedded. The story goes something like this: On 27 January 2017, 59-year-old Ross Compton was indicted on arson and insurance fraud charges. Police gained a search warrant to obtain his heart pacemaker readings (heart and cardiac rhythms) and called his alibi into question. Data from Compton’s pacemaker before, during, and after the fire in his home broke out were disclosed by the heart pacemaker manufacturer after a subpoena was served. The insurer’s bill for the damage was estimated at about US$400,000. Police became suspicious of Compton when they traced gasoline to Compton’s shoes, trousers, and shirt.
In his statement of events to police, Compton told a story that misaligned and conflicted with his call to 911. Forensic analysts found traces of multiple fires having been lit in various locations in the home. Yet, Compton told police he had rushed his escape, breaking a window with his walking stick to throw some hastily packed bags out and then fleeing the flames himself to safety. Compton also told police that he had an artificial heart with a pump attached, a fact that he thought might help his cause but that was to be his undoing. In this instance, his pacemaker acted akin to a black box recording on an airplane .
After securing the heart pacemaker data set, an independent cardiologist was asked to assess the telemetry data and determine if Compton’s heart function was commensurate with the exertion needed to make a break with personal belongings during a life-threatening fire . The cardiologist noted that, based on the evidence he was given to interpret, it was “highly improbable” that a man who suffered with the medical conditions that Compton did could manage to collect, pack, and remove the number of items that he did from his bedroom window, escape himself, and then proceed to carry these items in front of his house, out of harm’s way (see “Columbo, How to Dial a Murder”). Compton’s own cardio readings, in effect, snitched on him, and none were happier than the law enforcement officer in charge of the case, Lieutenant Jimmy Cunningham, who noted that the pacemaker data, while only a supporting piece of evidence, was vital in proving Compton’s guilt after gasoline was found on his clothing. Evidence-based policing has now well outstripped the more traditional intelligence-led policing approach, entrenched given the new realm of big data availability , .
Consumer Electronics Tell a Story
Several things are now of interest to the legal community: first and foremost, how is the search warrant for a person’s pacemaker data executed? In case 1, Campos was denied access to his own ICD data stream by the manufacturer, and yet his doctor had full access. In case 2, Compton’s own data provided authorities with the extra evidence they needed to accuse him of fraud. This is yet another example of seemingly private data being used against an individual (in this instance, the person from whose body the data emanated), but in the future, for instance, the data from one person’s pacemaker might well implicate other members of the public. For example, the pacemaker might be able to prove that someone’s heart rate substantially increased during an episode of domestic violence  or that an individual was unfaithful in a marriage based on the cross matching of his or her time stamp and heart rate data with another.
Of course, a consumer electronic does not have to be embedded to tell a story (Figure 7). It can also be wearable or luggable, as in the case of a Fitbit that was used as a truthdetector in an alleged rape case that turned out to be completely fabricated . Lawyers are now beginning to experiment with other wearable gadgetry that helps to show the impact of personal injury cases from accidents (work and nonwork related) on a person’s ability to return to his or her normal course of activities  (Figure 8). We can certainly expect to see a rise in criminal and civil litigation that makes use of a person’s Android S Health data, for instance, which measure things like steps taken, stress, heart rate, SpO2, and even location and time (Figure 9). But cases like Compton’s open the floodgates.
I have pondered on the evidence itself: are heart rate data really any different from other biometric data, such as deoxyribonucleic acid (DNA)? Is it perhaps more revealing than DNA? Should it be dealt with in the same way? For example, is the chain of custody coming from a pacemaker equal to that of a DNA sample and profile? In some way, heart rates can be considered a behavioral biometric , whereas DNA is actually a cellular sample . No doubt we will be debating the challenges, and extreme perspectives will be hotly contested. But it seems nothing is off limits. If it exists, it can be used for or against you.
The Paradox of Uberveillance
In 2006, M.G. Michael coined the term uberveillance to denote “an omnipresent electronic surveillance facilitated by technology that makes it possible to embed surveillance devices in the human body” . No doubt Michael’s background as a former police officer in the early 1980s, together with his cross-disciplinary studies, had something to do with his insights into the creation of the term . This kind of surveillance does not watch from above, rather it penetrates the body and watches from the inside, looking out .
Furthermore, uberveillance “takes that which was static or discrete…and makes it constant and embedded” . It is real-time location and condition monitoring and “has to do with the fundamental who (ID), where (location), and when (time) questions in an attempt to derive why (motivation), what (result), and even how (method/plan/thought)” . Uberveillance can be used prospectively or retrospectively. It can be applied as a “predictive mechanism for a person’s expected behavior, traits, likes, or dislikes; or it can be based on historical fact” .
In 2008, the term uberveillance was entered into the official Macquarie Dictionary of Australia . In research that has spanned more than two decades on the social implications of implantable devices for medical and nonmedical applications, I predicted  that the technological trajectory of implantable devices that were once used solely for care purposes would one day be used retrospectively for tracking and monitoring purposes. Even if the consumer electronics in question were there to provide health care (e.g., the pacemaker example) or convenience (e.g., a near-field-communication-enabled smartphone), the underlying dominant function of the service would be control . The socioethical implications of pervasive and persuasive emerging technologies have yet to really be understood, but increasingly, they will emerge to take center stage in court hearings, like the emergence of DNA evidence and then subsequently global positioning system (GPS) data .
Medical device implants provide a very rich source of human activity monitoring, such as the electrocardiogram (EKG), heart rate, and more. Companies like Medtronics, among others specializing in implantables, have proposed a future where even healthy people carry a medical implant packed with sensors that could be life sustaining and detect heart problems (among others), reporting them to a care provider and signaling when assistance might be required . Heart readings provide an individual’s rhythmic biometrics and, at the same time, can record increases and decreases in activity. One could extrapolate that it won’t be long before our health insurance providers are asking for the same evidence for reduced premiums.
The future might well be one where we all carry a black box implantable recorder of some sort , an alibi that proves our innocence or guilt, minute by minute (Figure 10). Of course, an electronic eye constantly recording our every move brings a new connotation to the wise words expressed in the story of Pinocchio: always let your conscience be your guide. The future black boxes may not be as forgiving as Jiminy Cricket and more like Black Mirror’s “The Entire History of You” . But if we assume that these technologies are to be completely trusted, whether they are implantable, wearable, or even luggable, then we are wrong.
The contribution of M.G. Michael’s uberveillance is in the emphasis that the uberveillance equation is a paradox. Yes, there are near-real-time data flowing continuously from more points of view than ever , closed-circuit TV looking down, smartphones in our pockets recording location and movement, and even implantables in some of us ensuring nontransferability of identity . The proposition is that all this technology in sum total is bulletproof and foolproof, omniscient and omnipresent, a God’s eye view that cannot be challenged but for the fact that the infrastructure and the devices, and the software, are all too human. And while uberveillance is being touted for good through an IoT world that will collectively make us and our planet more sustainable, there is one big crack in the utopian vision: the data can misrepresent, misinform, and be subject to information manipulation . Researchers are already studying the phenomenon on complex visual information manipulation, how to tell whether data has been tampered with, a suspect introduced or removed from a scene of a crime, and other forensic visual analytics . It is why Vladimir Radunovic, director of cybersecurity and e-diplomacy programs in the DiploFoundation, cited M.G. Michael’s contribution that “big data must be followed by big judgment” .
What happens in the future if we go down the path of constant bodily monitoring of vital organs and vital signs, where we are all bearing some device or at least wearing one? Will we be in control of our own data, or, as is seemingly obvious at present, will we not be in control? And how might selfincrimination play a role in our daily lives, or even worse, individual expectations that can be achieved by only playing to a theater 24/7 so our health statistics can stack up to whatever measure and cross-examination they are put under personally or publicly ? Can we believe the authenticity of every data stream coming out of a sensor onboard consumer electronics? The answer is no.
Having run many years of GPS data-logging experiments, I can say that a lot can go wrong with sensors, and they are susceptible to outside environmental conditions. For instance, they can log your location miles away (even in another continent), the temperature gauge can play up, time stamps can revert to different time zones, the speed of travel can be wildly inaccurate due to propagation delays in satellites, readings may not be at regular intervals due to some kind of interference, and memory overflow and battery issues, while getting better, are still problematic. The short and long of it is that technology cannot be trusted. At best, it can act as supporting evidence but should never replace eyewitness accounts. Additionally, “the inherent problem with uberveillance is that facts do not always add up to truth (i.e., as in the case of an exclusive disjunction T 1 T 5 F), and predictions based on uberveillance are not always correct” .
While device manufacturers are challenging the possibility that their ICDs are hackable in courts , highly revered security experts like Bruce Schneier are heavily cautioning about going down the IoT path, no matter how inviting it might look. In his acclaimed blog, Schneier recently wrote :
All computers are hackable…The industry is filled with market failures that, until now, have been largely ignorable. As computers continue to permeate our homes, cars, businesses, these market failures will no longer be tolerable. Our only solution will be regulation, and that regulation will be foisted on us by a government desperate to “do something” in the face of disaster…We also need to reverse the trend to connect everything to the internet. And if we risk harm and even death, we need to think twice about what we connect and what we deliberately leave uncomputerized. If we get this wrong, the computer industry will look like the pharmaceutical industry, or the aircraft industry. But if we get this right, we can maintain the innovative environment of the internet that has given us so much.
The cardiac implantables market by 2020 is predicted to become a US$43 billion industry . Obviously, the stakes are high and getting higher with every breakthrough implantable innovation we develop and bring to market. We will need to address some very pressing questions at hand, as Schneier suggests, through some form of regulation if we are to maintain consumer privacy rights and data security. Joe Carvalko, a former telecommunications engineer and U.S. patent attorney as well as an associate editor of IEEE Technology and Society Magazine and pacemaker recipient, has added much to this discussion already , . I highly recommend several of his publications, including “Who Should Own In-the-Body Medical Data in the Age of eHealth?”  and an ABA publication coauthored with Cara Morris, The Science and Technology Guidebook for Lawyers . Carvalko is a thought leader in this space, and I encourage you to listen to his podcast  and also to read his speculative fiction novel, Death by Internet,  which is hot off the press and wrestles with some of the issues raised in this article.
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A short form of this article was presented as a video keynote speech for the Fourth International Conference on Innovations in Information, Embedded and Communication Systems in Coimbatore, India, on 17 March 2017. The video is available at https://www.youtube.com/watch?v=bEKLDhNfZio.
Metadata, Electrocardiography, Pacemakers, Heart beat, Telecommunication services, Implants, Biomedical equipment, biomedical equipment, cardiology, criminal law, medical computing, police data processing, transport protocols, implantable medical device, heart, Australian inquiry, government agencies, illegal online services,mandatory metadata retention laws, government organizations, law enforcement organizations, Internet protocol
Citation: Katina Michael, 2017, "Implantable Medical Device Tells All: Uberveillance Gets to the Heart of the Matter", IEEE Consumer Electronics Magazine, Vol. 6, No. 4, Oct. 2017, pp. 107 - 115, DOI: 10.1109/MCE.2017.2714279.