regulators. This is a conclusion that is unlikely to encourage either healthcare providers or app developers, given that the indeterminacy associated with common law litigation is only exacerbated when applied to novel or emerging technologies.
II. TYPOLOGY AND TERMINOLOGY
The development of computing hardware, software platforms (operating systems), and the software and services sitting atop them has been extraordinary, with “Moore’s law provid[ing] an unprecedented combination of blistering progress and certainty about the near future.” 24 It took a while for mainframes to be replaced by personal computers (PC), while the movement to the post-PC world of mobiles has been comparatively rapid. 25 However, increased miniaturization and rapid iteration are now delivering the post-mobile future of wearables. 26 In this article the term mobile health is used to describe several overlapping technologies: health apps running on mobile devices, sensors and software built into mobile device platforms, and wearable technologies. However, the article does not consider the use of general mobile technologies, such as email or texting that may be used in the healthcare setting. Tens of thousands of mobile health products are already available on the market. 27 A typology developed by Nathan Cortez, which organizes these products according to function, is a useful starting point for our analysis. 28 “Connectors” connect “smartphones and tablets to FDA-regulated devices,”
24. Double, Double, Toil and Trouble, ECONOMIST: TECH. Q. 3 (March 12, 2016), available at http://www.economist.com/technology-quarterly/2016-03-12/after-moores-law. 25. See generally Gina Smith, Post PC Era Buzzword: Net Pioneer and MIT Futurist David Clark Used it First in 1999, A NEW DOMAIN, http://anewdomain.net/2012/10/13/post- pc-era-buzzword-mit-david-clark-used-it-first-in-1999/ (last visited March. 12, 2016) (describing the characteristics of the post-PC world); see generally THE NIELSEN CO., THE U.S. DIGITAL CONSUMER REPORT (Feb. 10, 2014), available at http://www.nielsen.com/us/en/ insights/reports/2014/ the-us-digital-consumer-report.html. 26. See generally Jeanne Meister, The Wearable Era Is Here: Implications for the Future Workplace, FORBES (June 16, 2014, 10: 15 AM), http://www.forbes.com/sites/jeannemeister/ 2014/06/16/the-wearable-era-is-here-implications-for-the-future-workplace/#5ffe995f17bd (noting that the Wearable Era is “a time when smart accessories will in turn push aside regular old phones and Tablets.”). For a general definition of what a wearable is and is not, see Dan Sung, What is Wearable Tech? Everything You Need to Know Explained, WAREABLE (Aug. 3, 2015), http://www.wareable.com/wearable-tech/what-is-wearable-tech-753 (“The new age of wearables tap into the connected self – they’re laden with smart sensors, and make sue use of a web connection, usually using Bluetooth to connect wirelessly to your smartphone.”). 27. Matt Goodman, Study Argues Booming Mobile Health Industry Would Benefit from Increased FDA Regulation, DALLAS/FORT WORTH HEALTHCARE DAILY (Aug. 5, 2014), http://healthcare.dmagazine.com/2014/08/05/study-argues-booming-mobile-health-industry- would-benefit-from-increased-fda-regulation/ (noting there were more than 97,000 mobile health apps on the market as of March 2013). 28. Cortez, supra note 13, at 1179.