Last month, I watched a client’s legitimate neck injury claim collapse because her Apple Watch showed she’d walked 8,000 steps on a single day, never mind that those steps came from painful physical therapy sessions she was required to attend. The insurance company’s attorney presented that single data point as proof she was “perfectly fine,” and the judge allowed it. This is now standard practice in California personal injury litigation, and it should alarm anyone who values privacy.
Insurance companies are increasingly demanding access to clients’ fitness trackers, smart home devices, and social media accounts to deny legitimate injury claims, and California courts are allowing it despite our state’s strong privacy protections. A single fitness tracker reading or an Instagram photo of someone smiling at a family gathering is being weaponized to argue that severe injuries don’t exist, ignoring the context that those steps might be from grueling physical therapy or that one good moment doesn’t negate months of chronic pain.
The scope of this digital surveillance is breathtaking. Defense attorneys now routinely demand complete downloads of plaintiffs’ Facebook, Instagram, and TikTok accounts, years of fitness tracker data, smart home device logs, and even location history from their phones. They’re not looking for smoking guns; they’re fishing for any fragment they can strip of context and present as evidence of fraud.
I’ve seen a photograph of a client holding her grandchild at a birthday party used to argue she had no back injury. The defense attorney showed the photo to the jury without mentioning it was taken during a rare, good day, that she’d spent the next three days bedridden, or that her doctor had encouraged her to maintain some social connections for her mental health. The jury saw a smiling woman holding a baby. They never saw the full picture.
California has long been a leader in privacy protection. Our state constitution explicitly guarantees a right to privacy. We passed the California Consumer Privacy Act to shield residents from corporate data collection. Yet somehow, when an injured Californian seeks compensation for medical bills and lost wages, those protections evaporate. Civil discovery rules allow insurance companies to conduct exactly the kind of invasive data harvesting we’ve forbidden tech companies from doing.
The problem extends beyond cherry-picked evidence. These surveillance tactics create a chilling effect on recovery itself. I now have to counsel clients to stop using their fitness trackers—devices their doctors recommended to monitor their rehabilitation progress. I tell them to avoid posting any photos on social media, even of milestone moments in their recovery, because a single image will be misinterpreted. Some clients become so paranoid about surveillance that they isolate themselves completely, which actually impedes their healing.
The insurance industry defends these practices by claiming they’re merely seeking relevant evidence. But there’s nothing relevant about demanding three years of someone’s complete digital footprint when their injury occurred six months ago. California’s discovery rules require that requests be reasonably calculated to lead to admissible evidence, yet judges routinely approve sweeping demands for digital data that would be considered outrageous invasions of privacy in any other context.
Other states are beginning to push back. New York courts have limited social media discovery to specific timeframes and require showing that relevant evidence actually exists before allowing broad access. We need California to do the same and go further.
Our state legislators should clarify that California’s constitutional privacy protections apply with full force in civil litigation. Courts should require insurance companies to demonstrate specific relevance before accessing digital data, not approve fishing expeditions through people’s entire digital lives. And judges should exclude evidence that’s taken out of context in ways that fundamentally misrepresent a plaintiff’s condition.
Until we establish these protections, every Californian should understand: if you’re injured and seek compensation, you’re consenting to comprehensive surveillance of your digital life. Your fitness tracker will be audited. Your social media will be dissected. And a single moment of normalcy will be used as proof that you’re a fraud.
That’s not justice. That’s a system that’s weaponized technology against the very people it should protect. California can, and must, do better.
