Pacemaker Data Used in Arson Conviction

Here's a story about data from a pacemaker being used as evidence in an arson conviction.

EDITED TO ADD: Another news article. BoingBoing post.

EDITED TO ADD (2/9): Another article.

Posted on February 2, 2017 at 6:33 AM • 36 Comments

Comments

JoshFebruary 2, 2017 7:07 AM

Privacy implications aside, and just from a quick reading of the article, it seems that there was plenty of evidence to suggest foul play was involved outside of the cardiac data. Given that level of existing evidence, it seems reasonable that a judge would conclude that the pacemaker data was liable to corroborate the forensic evidence and should, therefore, be collected. It wasn't as if investigators blindly said "Ohh - a pacemaker! Let's get it's data!"

-Josh

ThomasFebruary 2, 2017 7:08 AM

Given how insecure some medical implants are you could always claim you got hacked and fake logs were uploaded :-)

John XIFebruary 2, 2017 7:31 AM

What is it with privileged white males that need to start preaching about the impending doom, especially if they are financially secure? Reading the yesterday article I kept hearing /If I Were a Wealthy Man/ sung by Tevye the Milkman in /Fiddler on the Roof/.

Fearful white old men projecting their anxieties to the outside world have started all the wars taught in the Western history books. The sad part is the bill was paid by the young and the non-white.

Dirk PraetFebruary 2, 2017 7:53 AM

@ Thomas

Given how insecure some medical implants are you could always claim you got hacked and fake logs were uploaded

Or ask the friendly neighbourhood geek to do it for you if you were up to no good.

Dr. I. Needtob AtheFebruary 2, 2017 8:27 AM

That article is a hodgepodge of legitimate journalism interlaced with opinion and arguments, and is just plain badly written. I suggest reading less biased reports instead.

Who?February 2, 2017 9:16 AM

TRUE! —nervous —very, very dreadfully nervous I had been and am; but why will you say that I am mad? The disease had sharpened my senses —not destroyed —not dulled them. Above all was the sense of hearing acute. I heard all things in the heaven and in the earth. I heard many things in hell. How, then, am I mad? Hearken! and observe how healthily —how calmly I can tell you the whole story.

― EDGAR ALLAN POE, The Tell-Tale Heart (1843)

DanielFebruary 2, 2017 11:00 AM

There are two separate legal issues at stake here with the context of the American judicial system. The first is a 4A concern as to whether or not the police could collect the data from the pacemaker in the first place. This area of law is complicated (fingerprints yes, blood draws no) but my intuition is that most courts would allow it to be collected because the amount of intrusion into the integrity of the body is minimal. There may already be precedent on this issue, IDK.

The other issue is the 5A issue of whether or not the data could be used against him at trial. I think there are legitimate 5A concerns here. However, the decision to admit the data is likely to be subject to "harmless error" analysis and an appeals court would dodge the 5A question by saying it doesn't matter because a reasonable jury would have convicted him without the data from the heart implant. But I haven't seen all the evidence in the case and so that is just a supposition.

WaelFebruary 2, 2017 11:02 AM

Textbook case of parallel construction. The true story is: (how things work in the real world.)

After all, the Fifth Amendment of the U.S. Constitution protects a person from being forced to incriminate themselves.

Defendant: But per the fifth amendment...
Judge: Shut up! What an unpleasant surprise! You again?
Defendant: You can't force me to incriminate myself!
Judge: We didn't! The device ratted you out! Are you claiming your pacemaker is "you"?
Defendant: Umm, I guess!
Judge: Doesn't mater either way! We asked your provider. No need for you to self-incriminate!
Defendant: But I didn't do it! I really have a good heart!
Judge: Yea? I have news for you: you have a bad heart with a little snitch living in it!
Defendant: That's spying, I object!
Judge: lol! That hearing aid you're wearing sent us a transcript of what you plotted with your accomplice! Your smartphone gave us corroborating data. Oh, that google search string: "How to disguise an Arson job" doesn't help either!
Defendant: I didn't type that string! I forgot my laptop unlocked and someone must have done it.
Judge: Bool sheet! The typing telemetry we have matched your tenured typing characteristics. Then, you searched with your voice too. We have a wave file of your voice recording. Would you like to hear it?
Defendant: I was just fooling about. That's circumstantial evidence and speculations.
Judge: We also have video clips of you driving to the gas station. You filled a container with 7.8 gallons. Then we have you on video setting the house on fire!
Defendant: Would I set my house on fire with my cute cat in it? I loved her. I have a good heart!
Judge: Our big data shows that your cat was terminal and you visited the veterinarian to set an appointment to put her to sleep. You wanted to save $50. How disgusting! Good heart with a pacer! Haven't you learned a lesson from last year?

*judge about to strike the hammer on the table and pronounce: Guilty as sin!* but the prominent distinguished shyster interjects...

Shyster: Judge, that's 400k, baby! I'll grease your honorable hands! I get third, you get third, and the criminal gets third!

Judge: How dare you attempt to bribe me?
Shyster: Ok, you're a sophisticated negotiator: you get half and I'll split the other half with the convicted criminal?
Judge: *strikes hammer on the table*: The circumstantial evidence isn't enough to incriminate you. And you're right about the fifth amendment. Not Guilty!

vas pupFebruary 2, 2017 11:36 AM

@Wael • February 2, 2017 11:02 AM.
Thank you! You made my day brighter by your post.
Sorry, but I have to use kind of new POTUS language: "All criminal justice system [that is my statement] is rigged to the core [that's is utilizing his type of word applied to election system]. You do have talent - find a friend who can put your idea into cartoons on subject matter.
Now, on serious wave. Whatever medical/electronic device (pacemaker, thermostat, you name it) you have (imbedded, possessed, attached to your body or cloth, etc.), you have to be informed clearly upfront by manufacturer/seller of its capability of collection your personal, health,(HIPAA should take precedence in this article/case?),location, transaction, etc. information, how(how long in particular) and were it is stored and how protected, how you could audit that information and control its usage, when and how that information could be disclosed without your approval. Then, you know where in your personal environment there is 21 century Judas (just kidding!).

Dirk PraetFebruary 2, 2017 3:35 PM

@ Wael

The true story is: (how things work in the real world.)

Not only have you got both Orwell and Huxley spinning in their graves, my youngest niece I showed this to has asked if she can use it in a school play. I think they're doing some court room drama or something.

WaelFebruary 2, 2017 3:52 PM

@Dirk Praet,

Permission granted :) But a small correction is needed, since it's academic work:

Shyster: Judge, that's 400k, baby! I'll grease your honorable hands! I get third, you get third, and the criminal gets third!

Should be:

Shyster: Judge, that's 400k, baby! I'll grease your honorable palms! I get third, you get third, and the criminal gets third!

I always make that mistake. Just as often as I misspell "Holy"!

WhiskersInMenloFebruary 2, 2017 4:32 PM

@Wael
Parallel reconstruction ...
“Truth is stranger than fiction, but it is because Fiction is obliged to stick to possibilities; Truth isn't.”
― Mark Twain, Following the Equator: A Journey Around the World

The reality today is if the case is too air tight there is likely a fiction crafted
to exactly match the 'metadata'. This is in contrast to evidence leading
to a conviction. TV storytellers and TV CSI get it right inside an hour but
real crimes are not so tidy. Big data allows a prosecutor to craft a story
with no holes yet still not disclose the data or the source of it. Data can
be reverse space and as a negative search result perhaps not disclosed to
the defense. This allows illusions where ambiguous similarities between two or more
stories can be eliminated. http://brainden.com/face-illusions.htm not just
pictures but stories.

As for the 400k baby.. that is too true in the context of asset forfeiture abuse.

WaelFebruary 2, 2017 8:55 PM

@WhiskersInMenlo,

Fascinating link! I didn't get a chance to read everything there (I had a miserable headache for the past couple of days) but some pictures are familiar. There must be an element of truth regarding the "air-tight" stories!

Jen Gold StockholmFebruary 2, 2017 9:44 PM

@ Wael
i didn't comprehend the finale to your lovely comic number, guessing it was a nationality thing, but re reading now I finally percieve a few layers of subtlety. Nice one. However I am fairly sure criminal court judges don't use gavels ;-)


Who?February 3, 2017 1:26 AM

I may be wrong but see no differences between a pacemaker and, let us say, a computer or smartphone. If the latter can be used to incriminate someone on a court, why not the former?

Istvan ChungFebruary 3, 2017 2:30 AM

IANAL, but I'm not sure the fifth amendment is relevant. The police used the pacemaker data in the grand jury proceedings to obtain an indictment. It's possible the evidence wouldn't be admissible in the actual trial. This might be more an issue of the 4th amendment - but at least one important factor, probable cause, seems likely to have been satisfied.

WaelFebruary 3, 2017 3:30 AM

@Jen Gold Stockholm,

However I am fairly sure criminal court judges don't use gavels ;-)

So that's what's it's[1] called! And I thought it was a meat tenderizer mallet! What do I know? Clearly I'm not skilled in the art. I only represented a person in court once. Story for another thread...

You seem somewhat familiar with courtrooms. Been in close encounter with a judge, Jen?

[1] "That is what is it is"! Strange looking construct!

WaelFebruary 3, 2017 3:52 AM

@Who?

I may be wrong but see no differences between a pacemaker and, let us say, a computer or smartphone.

Huge difference! One doesn't interact with a pacemaker, for example! Suppose, god forbid, you had a cavity (in your tooth, that is) and had a dental filling done. Suppose the filling was the old amalgam metallic kind that had some RF resonance properties. What if they used that to track where you've been. See a difference between that and a smartphone? Exactly :) Or is the fact that one device is passive and the other active makes the difference in this case?

Clive RobinsonFebruary 3, 2017 4:05 AM

@ Who?,

I may be wrong but see no differences between a pacemaker and, let us say, a computer or smartphone.

You are wrong,

Firstly a pacemaker is fitted inside you, neither a computer or smartphone are, you have no choice about taking it with you where ever you go.

Secondly you can turn off a computer or smartphone as and when you chose to, which you cannot do with a pacemaker.

Thirdly a pacemaker has no sense of context, place or often absolute time etc. The fact you had different heart rythms when the authorities claim you might have been committing a crime, does not actually tie you to the crime location or any activities that might have been occuring there.

Fourthly pacemakers have considerably less security about the records they keep than either a smartphone or computer.

Fifthly there is the question of "bugging", US courts have ruled against the use of information obtained from technology the person has no control over. Specifically on when tracking devices have been used with out a prior warrant.

There's quite a few more, but that as they say "Is enough to be going on with" ;-)

WaelFebruary 3, 2017 4:21 AM

@Clive Robinson, @Who?

US courts have ruled against the use of information obtained from technology the person has no control over.

You might want to rephrase this expression. What if you have control of a smartphone, but others do as well? "Execludive Control" is probably what we need to say! Otherwise you're suggesting that I can use this law as a defense argument because I don't have control on my smartphone. The type of control we have on a smartphone or a computing device is superficial and an illusion.

WaelFebruary 3, 2017 4:25 AM

@Clive Robinson, @Who,

Normally I would let it go, but it's the central theme of my comment, so I need to fix it.

Exclusive control!

Clive RobinsonFebruary 3, 2017 5:14 AM

@ Wael, Jen Gold Stockholm,

So that's what's it's[1] called!

Yup gavels have an interesting history behind them.

They are infact a stylised weapon of defence, similar to maces, battons and pace sticks. They were used also as signs of status and command. Where the gentry who were the "officer" class carried them at all times. In part it was also like the Chinese Emperors who never cut their fingernails a clear sign that they were givers of orders to the menial masses not part of the labouring masses.

This mentality made it into both the First and Second World Wars where an Officer had his batton and side arm which only needed one hand to use, whilst the Ordinary Ratings below the rank of Warrant Officer or Staff Sergeant and in some cases Sergeant carried rifles and received not gave orders of significance. The officer supposadly needed the free hand for the handeling of paper orders, maps, compass, field glasses, pocket watch etc. As warfare became more technical the differential lines of command became very blured thus in the Engineers or Signals regiments side arms or sub machine guns became the norm and officers at or below Lte Colonel got their hands just as dirty as all other soldiers. Also in some regiments officers dressed in "working dress" or "battle dress" and wore the same headwear with the same metal insignia (not cloth/braid) often without signs of rank other than the batton. The reason was often that of not being an obvious target for snipers or torture if captured.

In UK courts, the robes and other signs of office are starting to disappear, I've actually seen a judge presiding dressed less ostentatiously than not just the reprasentatives but the defendents / litigants as well. On chatting to a senior judge socialy he made a point I had not thought of, the advantage of the robes was you could wear much more informal thus more comfortable clothing underneath, and told of an occasion in one very hot summer where he wore tennis shorts and vest and had a fan under his bench, and whilst hot was not as sweaty as the representatives...

@ Wael,

You might want to rephrase this expression.

Yes, there is a trade between brevity and termological exactitude. The difficulty being who's ire you incure for straying to far. A "sore" point that arose just the other day with "nitpicking" at a "ratio" / level that ab praeceptis has raised prior to that.

WaelFebruary 3, 2017 5:30 AM

@Clive Robinson, @Jen Gold Stockholm,

Yup gavels have an interesting history behind them.

I didn't see that coming ;) Thanks for the history lesson :) How about Moses and his staff, or Pharaohs and their "sticks"?

termological exactitude.

It's needed! This's a courtroom setting.

who's ire you incure

Anyone but the judge.

I'm feeling goofy already and vulgar limericks seem a good idea. Better quit while I'm ahead.

DroneFebruary 3, 2017 6:07 AM

He did it for the money to pay for his heart pacer - because his Obamacare deductibles are so high. Too bad, he should have gotten himself convicted of arson before he had the pacemaker implanted. In prison the taxpayers (

Jesse ThompsonFebruary 3, 2017 3:23 PM

@Wael
> What if they used a tooth filling to track where you've been?

> Or is the fact that one device is passive and the other active makes the difference in this case?

Well, in this case what's the different between RF resonance tracking a tooth filling and having a line-up of witnesses who report seeing the suspect with the conspicuously shiny gold tooth at the scene?

Also, Tattoos can be used to identify you even if they do *not* have RFID chips hidden under the ink somewhere! ;3

WaelFebruary 3, 2017 5:22 PM

@Jesse Thompson,

Well, in this case what's the different between RF resonance tracking a tooth filling and having a line-up of witnesses who report seeing the suspect with the conspicuously shiny gold tooth at the scene?

One comes with device security factors (information privacy, backdoors, unadvertised functionality) that could be used against a user, and the other comes with human factors (memory fidelity, bias, and integrity) concerns.

As for identifying a golden tooth *ding*, that falls under human factors as well.

Coyne TibbetsFebruary 4, 2017 11:37 AM

The Rights issues have been addressed fairly well, so I'll skip those. Instead, I'd like to focus on the two-edged sword aspect. I'm sure this kind of thing will often be an advantage for the police, but it's also likely to frequently be a disadvantage...

Defense: The police assert my client dragged a body thirty feet and lifted it into the trunk. We'd like to introduce evidence of my client's pacemaker log, which shows no evidence of the demand or rhythm necessary for such a task.
Prosecutor: He can't introduce evidence from a life-saving device.
Court: Ummm...you were in my courtroom just last week, arguing that it could be...

Defense: The police assert my client was drunk, but his diabetes monitor would show evidence of that...and there is none.

Defense: My client's hearing-aid transcript proves he never made any such call.

Defense: My client could hardly have walked without his prosthetic leg and the processor in that leg shows no activity at the time.

Now if your device is tattling on you, well, don't do the crime.

WaelFebruary 4, 2017 2:04 PM

...

Defense: My client's hearing-aid transcript proves he never made any such call.

Judge: *after he spent the money on women, alcohol, and gambling* Don't you ever use an Argument from ignorance in my court again or I'll have you disbarred! I told you he's innocent! Want to grease my honorable palms again? (Hands is also ok, btw.)... Next thread, I mean case, please! Now tell me: How much is in your wallet?

Coyne TibbetsFebruary 4, 2017 9:45 PM

@Wael I can see how my brief example could be taken as argument from ignorance, but it need not always be so.

Suppose the police assert the defendant made a particular phone call (such as to arrange a hit or a drug sale) at a particular time. A hearing aid transcript showing the defendant doing something else at the particular time is exculpatory.

WaelFebruary 4, 2017 10:21 PM

@Coyne Tibbets,

I can see how my brief example could be taken as argument from ignorance

That's how a judge or jury may see it as well.

A hearing aid transcript showing the defendant doing something else at the particular time is exculpatory.

That's also a possibility. It needs to show something that cannot possibly coexist with the act of planning for the crime. The trick is to prove that the transcript is authentic. I know, it's backwoods, but if one is targeted for a case, the burden of proof falls on the defense, and not on the prosecutor.

The reverse case needs no proof. The prosecutor needs only to present a transcript. Have you ever heard of evidence obtained from a seized device questioned? Backdoors don't break only confidentiality, they also allow tampering (integrity isn't preserved.)

The question is: how is the jury likely to react in these two cases:

A: Prosector presents a transcript of an intercepted conversation that supports the accusation

B: Defence presents the same transcript that negates the accusation

Short answer: In a perfect fair justice system, you are absolutely correct. In the real world, I'm not so sure...

WaelFebruary 5, 2017 12:43 AM

@Coyne Tibbets,

My client's hearing-aid transcript proves he never made any such call.

I think you're right. The word "proves" implies the stuff I said. I don't know why I read it as "the transcript doesn't show the incriminating conversation", when what you wrote means "The transcript shows the incriminating conversation could not have possibly taken place".

Your deliberation should be classified as argument from ignorance. So sue me :)

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