BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1116 (Committee on Privacy and Consumer Protection)
Version: July 2, 2015
Hearing Date: July 14, 2015
Fiscal: Yes
Urgency: No
TH
SUBJECT
Connected Televisions
DESCRIPTION
This bill would prohibit a person from using the features in a
connected television that allow for the collection and recording
of spoken words without first informing the user of the
connected television, except as specified.
This bill would prohibit the manufacturer of a connected
television and specified third parties from using or selling for
an advertising purpose sounds that were collected by a connected
television for the purpose of improving the function, operation,
or features of the television.
This bill would also prohibit a person from compelling another
who offers features that allow for the collection and recording
of spoken words through a connected television to build in
specific features that allow an investigative or law enforcement
officer to monitor communications through that feature, and
would limit the liability of manufacturers of connected
televisions, as specified.
BACKGROUND
Late last year, an electronics manufacturer named Samsung
unveiled a new consumer television set featuring voice
recognition technology that enables the user to operate the
television, access imbedded applications, and navigate the
Internet, using voice commands. Shortly after its introduction,
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consumer groups expressed concern that the television's voice
recognition technology was recording sounds within range of the
television and transmitting the recordings across the Internet
to third parties for unknown purposes. An article earlier this
spring from the British Broadcasting Company describes the
problem as follows:
Samsung is warning customers about discussing personal
information in front of their smart television set. The
warning applies to TV viewers who control their Samsung Smart
TV using its voice activation feature. When the feature is
active, such TV sets "listen" to what is said and may share
what they hear with Samsung or third parties, it said.
Privacy campaigners said the technology smacked of the
telescreens, in George Orwell's 1984, which spied on citizens.
The warning came to light via a story in online news magazine
the Daily Beast which published an excerpt of a section of
Samsung's privacy policy for its net-connected Smart TV sets.
These [TV sets] record what is said when a button on a remote
control is pressed. The policy explains that the TV set will
be listening to people in the same room to try to spot when
commands or queries are issued via the remote. It goes on to
say: "If your spoken words include personal or other sensitive
information, that information will be among the data captured
and transmitted to a third party."
Corynne McSherry, an intellectual property lawyer for the
Electronic Frontier Foundation (EFF) which campaigns on
digital rights issues, told the Daily Beast that the third
party was probably the company providing speech-to-text
conversion for Samsung. She added: "If I were the customer, I
might like to know who that third party was, and I'd
definitely like to know whether my words were being
transmitted in a secure form."
. . .
In response to the widespread sharing of its policy statement,
Samsung has issued a statement to clarify how voice activation
works. It emphasised that the voice recognition feature is
activated using the TV's remote control. It said the privacy
policy was an attempt to be transparent with owners in order
to help them make informed choices about whether to use some
features on its Smart TV sets, adding that it took consumer
privacy "very seriously".
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Samsung said: "If a consumer consents and uses the voice
recognition feature, voice data is provided to a third party
during a requested voice command search. At that time, the
voice data is sent to a server, which searches for the
requested content then returns the desired content to the TV."
It added that it did not retain voice data or sell the audio
being captured. Smart-TV owners would always know if voice
activation was turned on because a microphone icon would be
visible on the screen, it said. (British Broadcasting
Corporation, Not in Front of the Telly: Warning Over
'Listening' TV (Feb. 9, 2015)
[as of June 20,
2015].)
Responding to concerns that connected televisions such as
Samsung's may be recording user conversations without knowledge
or consent, this bill prohibits the use of such features without
first informing the user about the feature. This bill also
prohibits the manufacturer of a connected television and
specified third parties from using or selling for an advertising
purpose certain sounds that were collected by the television,
and prohibits a person from compelling another to build specific
features into a connected television function that allow
investigative or law enforcement officers to monitor
communications.
This bill authorizes the Attorney General or any district
attorney to seek a court order enjoining violations of the above
prohibitions, as well as seek civil penalties not to exceed
$2,500 against the manufacturer for each connected television
found to violate these prohibitions.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, provides that all
people are by nature free and independent and have inalienable
rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and
pursuing and obtaining safety, happiness, and privacy. (Cal.
Const, art. I, Sec. 1.)
Existing case law permits a person to bring an action in tort
for an invasion of privacy and provides that in order to state a
claim for violation of the constitutional right to privacy, a
plaintiff must establish the following three elements: (1) a
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legally protected privacy interest; (2) a reasonable expectation
of privacy in the circumstances; and (3) conduct by the
defendant that constitutes a serious invasion of privacy. (Hill
v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.)
Existing case law states that legally recognized privacy
interests are generally of two classes: interests in precluding
the dissemination or misuse of sensitive and confidential
information (informational privacy), and interests in making
intimate personal decisions or conducting personal activities
without observation, intrusion, or interference (autonomy
privacy). (Hill v. National Collegiate Athletic Assn. (1994) 7
Cal.4th 1, 35.)
Existing law renders an individual liable for constructive
invasion of privacy when that individual attempts to capture, in
a manner that is offensive to a reasonable person, any type of
visual image, sound recording, or other physical impression of
another engaging in a private, personal, or familial activity,
through the use of any device, regardless of whether there is a
physical trespass, if this image, sound recording, or other
physical impression could not have been achieved without a
trespass unless the device was used. (Civ. Code Sec. 1708.8.)
Existing law states that no person who owns, controls, operates,
or manages a satellite or cable television corporation, or who
leases channels on a satellite or cable system shall use any
electronic device to record, transmit, or observe any events or
listen to, record, or monitor any conversations that take place
inside a subscriber's residence, workplace, or place of
business, without obtaining the express written consent of the
subscriber, as specified. (Pen. Code Sec. 637.5(a)(1).)
Existing law states that no satellite or cable television
corporation may provide any person with any individually
identifiable information regarding any of its subscribers,
including, but not limited to, the subscriber's television
viewing habits, shopping choices, interests, opinions, energy
uses, medical information, banking data or information, or any
other personal or private information, without the subscriber's
express written consent. (Pen. Code Sec. 637.5(a)(2).)
Existing law specifies that individual subscriber viewing
responses or other individually identifiable information derived
from subscribers may be retained and used by a satellite or
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cable television corporation only to the extent reasonably
necessary for billing purposes and internal business practices,
and to monitor for unauthorized reception of services, as
specified. (Pen. Code Sec. 637.5(b).)
Existing law specifies that any individually identifiable
subscriber information gathered by a satellite or cable
television corporation shall be made available for subscriber
examination within 30 days of receiving a request by a
subscriber to examine the information on the premises of the
corporation. (Pen. Code Sec. 637.5(d).)
This bill provides that, except for voice commands that are not
recorded or transmitted beyond the connected television, a
person or entity shall not use the features in a connected
television that allow the collection, recording, storage,
analysis, transmission, interpretation, or other use of the
spoken word of a person within this state without informing the
user or a person designated by the user to perform the initial
setup or installation of the connected television.
This bill states that a manufacturer of a connected television
or a third party that contracts with a manufacturer of a
connected television to provide a voice recognition feature
shall not use or sell for any advertising purpose any spoken
word or other sound that was collected by a connected television
for the purpose of improving the function, operation, or
features of the connected television, including, but not limited
to, the provision of an accessible user interface for people
with disabilities.
This bill prohibits a person or entity from compelling a
manufacturer or entity offering features that allow the
collection, recording, storage, analysis, transmission,
interpretation, or other use of spoken words, to build specific
features for the purpose of allowing an investigative or law
enforcement officer to monitor communications through that
feature.
This bill does not apply to satellite or cable television
corporations regulated under Section 637.5 of the Penal Code.
This bill defines the following terms:
"connected television" means a video device designed for home
use to receive television signals and reproduce them on an
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integrated, physical screen display that exceeds 12 inches,
except that this term shall not include a personal computer,
portable device, or a separate device that connects physically
or wirelessly to a television, including, but not limited to,
a set-top box, video game console, or digital video recorder;
"user" means a person who purchases, leases, or takes
ownership of a connected television, but does not include a
person who is incidentally recorded when a voice recognition
feature is activated by a user;
"utilize" means to use a voice recognition feature that was
previously enabled; and
"voice recognition feature" means the function of a connected
television that allows the collection, recording, storage,
analysis, transmission, interpretation, or other use of spoken
words or other sounds, except that this term shall not include
voice commands that are not recorded or transmitted beyond the
connected television.
This bill provides that enforcement of the above provisions may
be prosecuted exclusively in a court of competent jurisdiction
in a civil action brought in the name of the people of the State
of California by the Attorney General or by any district
attorney, and that this bill shall not be deemed to create a
private right of action, or limit any existing private right of
action. This bill specifies that actions for relief may include
enjoining a manufacturer that engages, has engaged, or proposes
to engage, in a violation of the above provisions, and assessing
a civil penalty against the manufacturer not to exceed two
thousand five hundred dollars ($2,500) for each connected
television in violation of this chapter.
This bill specifies that a manufacturer shall only be liable for
functionality provided at the time of the original sale of a
connected television and shall not be liable for functionality
provided by applications downloaded and installed by a user.
COMMENT
1.Stated need for the bill
The author writes:
AB 1116 prohibits a manufacturer from selling a television in
California that can record and transmit sounds or
conversations from inside a person's home back to the
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manufacturer or to a third party when the TV's voice
recognition technology is not enabled by the consumer. The
[bill] specifies that only the Attorney General or a district
attorney may enforce [its provisions]. The bill does not
create a private right of action. This bill is authored and
sponsored by the Assembly Privacy and Consumer Protection
Committee.
Once considered a novelty, voice recognition technology has
become a standard capability of many consumer electronics.
From telephones that capture and interpret our voices to
enable handsfree texting, to televisions that allow users to
change channels via voice command, this cutting edge
technology has continued to evolve in ways that promote ease
of use and safety for consumers. Critics, however, question
the price of this progress. Much to the dismay and outrage of
consumers and civil libertarians in the United States and
abroad, recent news reports have exposed that smart TVs with
voice recognition features can record and transmit sounds and
private conversations inside the room where the TV is located.
While manufacturers have warnings tucked away in their
privacy policies and service agreements, consumers have been
largely unaware that whatever they say can be captured,
recorded and transmitted to the manufacturer or a third party
service provider.
. . .
AB 1116 protects California consumers by effectively requiring
manufacturers to ensure that a TV's voice recognition feature
cannot be remotely enabled by the manufacturer or the
manufacturer's third party service provider without a
consumer's knowledge and without any action by the consumer to
enable the voice recognition feature.
2.Fundamental Right to Privacy
The right to privacy is a fundamental right protected by Section
1 of Article I of the California Constitution. This
constitutional right to privacy restricts the government and
others from infringing upon the legally protected privacy
interests of California residents. The California Supreme
Court has found that "[l]egally recognized privacy interests are
generally of two classes: (1) interests in precluding the
dissemination or misuse of sensitive and confidential
information (informational privacy); and (2) interests in making
intimate personal decisions or conducting personal activities
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without observation, intrusion, or interference (autonomy
privacy). (Hill v. National Collegiate Athletic Assn. (1994) 7
Cal.4th 1, 35 [internal quotation marks omitted].) Unauthorized
voice recordings collected by a connected television within
one's home fall within the "informational privacy" class of
protected privacy interests.
The Court has held that "[i]nformational privacy is the core
value" furthered by the constitutional right of privacy. (Id.)
"A particular class of information is private when
well-established social norms recognize the need to maximize
individual control over its dissemination and use to prevent
unjustified embarrassment or indignity. Such norms create a
threshold reasonable expectation of privacy in the data at
issue." (Id.) The Court has held that "the usual sources of
positive law governing the right to privacy -- common law
development, constitutional development, [and] statutory
enactment"-- illuminate "[w]hether established social norms
safeguard a particular type of information . . . from public or
private intervention." (Id. at 36.)
Conversations within one's home qualify as a type of information
protected by established social norms. In Katz v. United States
(1967) 389 U.S. 347, the U.S. Supreme Court recognized that
private conversations in areas secluded from public hearing are
protected from government eavesdropping under the Fourth
Amendment's search and seizure provisions precisely because
there is a societal expectation that such conversations will be
afforded a reasonable expectation of privacy. Indeed,
California law recognized the protected nature of these
communications when it prohibited satellite and cable television
corporations from using television equipment to record, listen
to, or monitor conversations that take place inside a
subscriber's residence without their express written consent.
(See Pen. Code Sec. 637.5(a)(1).)
This bill reinforces California residents' right to converse in
their homes without fear that their conversations will be
monitored or recorded by third parties through microphones
embedded in their televisions. By prohibiting any party from
enabling the voice recording feature of a connected television
without the user's knowledge, this bill helps ensure that
conversations within the home remain private and safeguarded
from misuse by others. However, it appears that the bill, as
amended, inadvertently minimized the level of warning that must
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be given to a user before connected televisions may begin
collecting and recording the sounds around them. As the author
notes in Comment 1, some "manufacturers have warnings tucked
away in their privacy policies and service agreements" that
leave consumers "largely unaware that whatever they say can be
captured, recorded and transmitted to the manufacturer or a
third party service provider." To ensure that consumers receive
clear, robust warnings before a connected television begins
recording and transmitting sounds beyond the television, the
author offers the following amendment specifying that the
warning must be prominent.
Author's Amendment :
On page 4, line 6, after "without" insert "prominently"
3.Constructive Invasion of Privacy
The protections offered by this bill are complimentary to
California's existing tort of "constructive invasion of
privacy." Codified at Civil Code Section 1708.8(b), this tort
renders a person liable for invasion of privacy when they
attempt to capture, in a highly offensive manner, any type of
visual image, sound recording, or other physical impression of
another person in which that person had a reasonable expectation
of privacy, through the use of any device, regardless of whether
there was a physical trespass, if the image or recording could
not have been achieved without a trespass unless the device was
used. A constructive invasion of privacy claim may, for
example, be brought against a person who used sound amplifying
equipment to hear the private telephone conversation of a
neighbor in a secluded portion of his or her property.
Since this tort includes the capturing of sound or video of a
person engaged in any "private, personal, and familial activity"
for which they had a reasonable expectation of privacy, it is
likely that a reviewing court would find the unauthorized
recording of conversations within a home using a connected
television as tortious conduct under existing law. Unlike the
present bill which limits its remedial provisions to the
Attorney General and district attorneys, as discussed below, any
aggrieved party is authorized to seek remedies against an
individual who constructively invades their privacy, including a
person who uses a connected television to surreptitiously record
private conversations.
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4.Remedies
This bill expressly authorizes the Attorney General or any
district attorney to bring a civil action to enforce the
prohibitions set forth in the bill, and authorizes a court to
enjoin or enter other orders or judgments against manufacturers
that violate its provisions, as well as assess a civil penalty
not to exceed $2,500 for each violation. This bill also
specifies that it shall not be deemed to create a private right
of action, or limit any existing private right of action. In
the past, this Committee has expressed concern about legislation
that creates new rights for California residents, but leaves
them without a mechanism to directly enforce those rights in the
courts. Exclusive remedy provisions such as the one in this
bill leave direct enforcement of an aggrieved party's rights to
public prosecutors, who, due to other office priorities or
limited resources, may elect not to pursue alleged violators.
However, other provisions in California law likely give
aggrieved parties suitable alternatives to recover for injuries
caused by those who use connected televisions to surreptitiously
record private conversations. California's Unfair Competition
Law (UCL), for example, renders an individual liable for any
unlawful, unfair or fraudulent business act or practice and any
unfair, deceptive, untrue or misleading advertising. (Bus. &
Prof. Code Sec. 17200.) In describing the unfair competition
law's broad scope, the California Supreme Court explained: "it
does not proscribe specific practices. Rather . . . it defines
unfair competition to include any unlawful, unfair or fraudulent
business act or practice. Its coverage is sweeping, embracing
anything that can properly be called a business practice and
that at the same time is forbidden by law." (Cel-Tech
Communications, Inc. v. Los Angeles Cellular Telephone Co.
(1999) 20 Cal.4th 163, 180 (internal quotation marks and
citations omitted).) Consequently, an aggrieved party may be
able to enjoin prohibited conduct involving connected
televisions and recover for their injuries through this broad
consumer protection statute. Further, as discussed in Comment 3
above, the tort of constructive invasion of privacy may give
aggrieved parties an alternate cause of action to pursue against
those who violate this bill's provisions in lieu of direct
remedies under the bill itself. Importantly, this bill
preserves these alternate remedies for consumers by expressly
stating that it does not "limit any existing private right of
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action," and that its remedies and penalties are "cumulative to
each other and to the remedies or penalties available under all
other laws of the state."
5.Potential Class of Defendants
This bill's prohibitions against such things as enabling the
voice recognition feature of a connected television without the
user's knowledge are broadly written, prohibiting any "person"
from violating its provisions. However, the remedies portion of
the bill directs its focus on "manufacturers," stating that a
court may enjoin a manufacturer that violates the bill's
provisions, or award civil penalties against a manufacturer that
commits a violation. The disconnect between the class of
persons subject to this bill's prohibitions and those against
whom a court may award relief creates the possibility that a
violator other than the manufacturer, such as an electronics
importer, who sells or leases non-compliant connected
televisions in California may escape liability. For example, if
non-compliant connected televisions are manufactured overseas
and lawfully sold to an importer who then offers the devices for
sale in retail stores in California, this bill would seemingly
only authorize public prosecutors to seek recourse against the
manufacturer, not the importer who violated the law. To correct
this incongruity, the author offers the following amendments to
allow courts to award relief against all possible violators.
Author's Amendments :
On page 5, line 28, strike "manufacturer" and insert "person"
On page 5, line 32, strike "manufacturer" and insert "person"
On page 5, line 35, after "television" insert "sold or leased"
6.Technical Amendments
The author offers the following amendments to correct technical
errors in the latest version of the bill. These amendments
clarify that the manufacturer of a connected television, or a
third party that contracts with the manufacturer to provide a
voice recognition feature, shall not use or sell for any
advertising purpose any spoken word or other sound that was
collected by a connected television.
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Author's Amendments :
On page 4, line 12, strike "television" and insert
"television, including"
On page 4, line 14, strike "including, but not limited to,"
and insert "or for"
Support : Privacy Rights Clearinghouse
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 2306 (Chau, Ch. 858, Stats. 2014) expanded the tort of
constructive invasion of privacy to include the use of any
device to capture, or attempt to capture, in a manner that is
offensive to a reasonable person, any type of visual image,
sound recording, or other physical impression of another person
engaging in a personal or familial activity under circumstances
in which the other person had a reasonable expectation of
privacy.
AB 2667 (Bloom, Ch. 426, Stats. 2014) amended the Karnette
Rental-Purchase Act to require a lessor to give clear and
prominent notice to a consumer and obtain their express consent
when selling an electronic device that has geophysical location
tracking technology installed by the lessor. This bill
prohibited lessors from using, selling, or sharing geophysical
location tracking technology for any purpose other than the
repossession of the electronic device when there is a violation
of the rental-purchase agreement, or when requested by the
consumer, and also prohibited a lessor from using or installing
monitoring technology on an electronic device for any purpose
other than to provide remote technical assistance when requested
by the consumer.
SB 1090 (Bowen, Ch. 731, Stats. 2001) expanded to satellite
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television corporations the existing prohibition on using
electronic devices to observe, listen to, record, or monitor
events or conversations inside a cable television subscriber's
residence, workplace, or place of business without the
subscriber's written consent, or from providing any other person
with individually identifiable information, as specified,
regarding any subscriber.
SB 1599 (Bowen, 2000) would have expanded to video providers, as
defined, the existing prohibition on using electronic devices to
observe, listen to, record, or monitor events or conversations
inside a cable television subscriber's residence, workplace, or
place of business without the subscriber's written consent, or
from providing any other person with individually identifiable
information, as specified, regarding any subscriber. This bill
died in the Assembly Public Safety Committee.
Prior Vote :
Assembly Floor (Ayes 74, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Privacy and Consumer Protection Committee (Ayes 11,
Noes 0)
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