BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1116|
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THIRD READING
Bill No: AB 1116
Author: Committee on Privacy and Consumer Protection, et al.
Amended: 7/16/15 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 7/14/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 74-0, 5/22/15 (Consent) - See last page for
vote
SUBJECT: Connected televisions
SOURCE: Author
DIGEST: This bill prohibits 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
prohibits 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 also prohibits 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 limits the liability of
manufacturers of connected televisions, as specified.
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ANALYSIS:
Existing law:
1)Provides, in the California Constitution, 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.)
2)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 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.)
3)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.)
4)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
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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.)
5)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).)
6)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).)
7)Specifies that individual subscriber viewing responses or
other individually identifiable information derived from
subscribers may be retained and used by a satellite or 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).)
8)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).)
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This bill:
1)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 prominently informing
the user or a person designated by the user to perform the
initial setup or installation of the connected television.
2)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,
including for the purpose of improving the function,
operation, or features of the connected television, or for the
provision of an accessible user interface for people with
disabilities.
3)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.
4)Does not apply to satellite or cable television corporations
regulated under Section 637.5 of the Penal Code.
5)Defines the following terms:
"connected television" means a video device designed for
home use to receive television signals and reproduce them
on an integrated, physical screen display that exceeds 12
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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.
1)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 person who engages, has engaged, or
proposes to engage, in a violation of the above provisions,
and assessing a civil penalty against the person not to exceed
two thousand five hundred dollars ($2,500) for each connected
television sold or leased in violation of this chapter.
2)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
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provided by applications downloaded and installed by a user.
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,
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 which campaigns on digital
rights issues, told the Daily Beast that the third party was
probably the company providing speech-to-text conversion for
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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".
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)
Page 8
$2,500 against person for each connected television found to
violate these prohibitions.
Comments
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
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.
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Related/Prior Legislation
AB 2306 (Chau, Chapter 858, Statutes of 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, Chapter 426, Statutes of 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. The 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, Chapter 731, Statutes of 2001) expanded to
satellite 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. The bill
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died in the Assembly Public Safety Committee.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified8/19/15)
Privacy Rights Clearinghouse
OPPOSITION: (Verified8/19/15)
None received
ASSEMBLY FLOOR: 74-0, 5/22/15
AYES: Achadjian, Travis Allen, Baker, Bigelow, Bloom, Bonilla,
Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, Patterson, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Wagner, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Alejo, Jones, O'Donnell, Olsen, Waldron,
Weber
AB 1116
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Prepared by:Tobias Halvarson / JUD. / (916) 651-4113
8/20/15 11:45:55
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