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











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          Prepared by:Tobias Halvarson / JUD. / (916) 651-4113
          8/20/15 11:45:55


                                   ****  END  ****