A Body Of Data Exposed: Who Owns the Info Generated By Wearable Tech?

You think you do? What a quaint notion. Try defending that concept in court. JL

Marc Tracy reports in the New York Times:

A clause in the contract could, in the future, allow Nike to harvest personal data from athletes through the use of wearable technology like heart-rate monitors, GPS trackers and other devices that log myriad biological activities.

The University of Michigan football team took the field for its season opener on Sept. 3 accompanied by Michael Jordan, the team’s honorary captain for the game, in uniforms bearing his signature Jumpman logo. Such pageantry is the fruit of a new apparel contract, worth about $170 million, between the university and Nike.

But one significant aspect of the deal, among the richest in college sports, was not apparent to the crowd. A clause in the contract could, in the future, allow Nike to harvest personal data from Michigan athletes through the use of wearable technology like heart-rate monitors, GPS trackers and other devices that log myriad biological activities.

As debates about athletes’ rights intensify in big-time college sports, the next frontier, independent experts say, could be privacy issues related to wearable tech, which in coming years could expand beyond health trackers like Fitbit and the Apple Watch to so-called smart clothing, with sensors embedded in the material itself.

The most ambitious projects are still on the drawing board. But at Michigan, a range of devices could eventually collect data including “speed, distance, vertical leap height, maximum time aloft, shot attempts, ball possession, heart rate, running route” and other measurements, according to the contract.

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Although other universities have deals with technology companies governing health- and fitness-monitoring devices, Michigan’s contract drew notice not only because of the Wolverines’ high profile but also because the contract appears to allow for more comprehensive data collection than is typical and grants Nike, the world’s biggest sportswear company, broad rights “to utilize” that information.

“My question is, how would players’ interests be represented?” Leslie Saxon, a cardiologist who runs the University of Southern California Center for Body Computing, said, noting that college athletes’ designation as amateurs gave them limited leverage to influence such deals.

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Michael Jordan, right, greeted Jim Harbaugh, the football coach at Michigan, which is wearing the Jordan brand as part of a contract with Nike. Credit Tony Ding/Associated Press

At the professional level, Saxon said, there is a “players’ association part of this,” with several unions engaged in discussions over wearable tech.

Michigan’s contract, obtained by several news media organizations, including The New York Times, stipulates that the data collection be anonymous and comply with “all applicable laws.”

But privacy experts say those stipulations provide limited security given the threat of hacking and the lack of regulation in this area. The experts also say that the data, if matched to certain players — something the experts say could prove less difficult than it sounds — could harm their career prospects and, depending on what is measured, reveal intimate details.

“There’s not a lot of protections for players,” said Tatiana Melnik, a health care lawyer, who noted that the federal Health Insurance Portability and Accountability Act applied to medical records but not biometric data like that covered by Nike’s contract.

She, too, said college athletes might lack say over how their data was used.

“How does a player know you’re not going to turn around and share this information with the N.F.L.?” she said.

The contract appears to give Michigan a degree of veto power, saying the data “shall be subject to university approval.”

Kurt Svoboda, an athletics department spokesman, suggested that was an important caveat.

“We would evaluate each request on its own merits and utilize our approval rights in the best interests of U.M. and our student-athletes,” he said in an email.

A Nike spokesman, Josh Benedek, said in a statement that although the company had not yet collected athlete data under its college contracts, “Nike has a long history of securely measuring athlete performance, specifically through our Nike Sports Research Lab scientists.”

He added: “We’ll continue to use athlete science to inform footwear and apparel advancements for performance and safety. We take athlete data, privacy and security seriously.”

The quandary presented by wearable tech data in college sports extends well beyond Nike’s deals with Michigan and Tennessee, which signed a contract with similar language in 2014.

Catapult, an Australian company that uses GPS hardware to measure how hard an athlete has worked, has attained numerous American clients over the last few years, including Notre Dame and Florida State. In those cases, in contrast with the Nike-Michigan arrangement, the teams own the data, a Catapult spokesman said.

The contract U.C.L.A. signed with Under Armour this year makes reference to “accessories with the capability of measuring biometric data” but does not seem to grant the company rights to such information. An Under Armour spokeswoman said the company had not collected athlete data.

The Michigan contract particularly alarmed some experts because of what they perceived as its broad latitude.

Although it restricts collection of data to games, practices and other events where coaches or staff appear in official capacities and covers some measurements, like heart rate, wording in the contract leaves the door open to tracking many other attributes, like temperature and sweat production.

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A Nike Swoosh was displayed on a billboard outside Michigan Stadium in July 2015, shortly after the university reached a new apparel and equipment deal with Nike. The deal kicked in last month. Credit Melanie Maxwell/The Ann Arbor News, via Associated Press

Wearable tech, although still in its infancy, is booming, and companies are hunting for advancements.

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With devices like Fitbits ubiquitous among elite athletes and weekend warriors alike, several apparel companies have dipped their toes into the industry, which could grow to an annual market of more than $30 billion by the end of the decade.

“Everything Fitbit is doing on a hardware basis, they’re trying to do in apparel or footwear,” Camilo Lyon, an analyst at Canaccord Genuity, said, referring to companies like Under Armour, which last year spent more than $700 million buying three fitness apps, and Nike, which collaborated on a new, branded Apple Watch that was announced Wednesday.

“There’s an arms race for technology advancements,” he added. “There’s never been a time in history in technology and athletics where the lines have blurred as much as now.”

Many professional sports teams have embraced data collection — for instance, how far a player has run in the course of a game — to inform training methods, but in leagues like the N.B.A., the handling of such data is likely to become grist for negotiations involving the players’ unions. In 2014, referring to wearable tech, the National Basketball Players Association’s general counsel told ESPN the Magazine, “We’d have serious privacy and other fairness concerns.”

Christine Sublett, an information security consultant who counts wearable tech and medical device companies as clients, was concerned about the potential for hacking.

“Somebody who is motivated and has the right tools — and we’re not talking complex or expensive tools here — could get access to this data while it’s in transit, or in storage where it hasn’t been encrypted,” she said.

Hackers could use the data to influence sports wagering, knowing more about the physical condition of teams and possibly players.

“This is a place where there’s lots of money to be made, which means people will be motivated,” Sublett said.

Still, it is easy to see how Michigan, Nike and the players could benefit from the

kind of collaboration hinted at in the deal, which was brought to wider notice last month when a retired lawyer, Bill Wilson, blogged about it.

Melnik, the health care lawyer, said, “There’s a huge benefit to the player and the school — they can get treated faster, and potential long-term damage can be contained.”

The primitive state of regulation and conversation in this area reflects the nature of smart clothing, which has barely been commercialized. But privacy and athletes’ rights advocates worry the technology will outpace the adoption of legal limits and standards.

“I have to wonder if Michigan knows what they’ve just done,” said Katrina Karkazis, a bioethicist at Stanford.

She added, “I don’t know if they’ve seen the size of the hornets’ nest they’ve hit.”