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.
AmendedAmended:9/3/15 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 the operation of a voice
recognition feature within a connected television without first
prominently informing, during the initial setup or installation
of a connected television, either the user or the person
designated by the user to perform the initial setup or
installation of the connected television. This bill also
prohibits for advertising purposes the use or sale of certain
recordings that are collected by a connected television for the
purpose of improving its voice recognition feature.
Senate Floor Amendments of 9/3/15 limit the scope of the
prohibition against using sound recordings collected by a
connected television for advertising purposes to only those
recordings collected for the purpose of improving the connected
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television's voice recognition feature.
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
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
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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).)
This bill:
1)States that a person or entity shall not provide the operation
of a voice recognition feature within this state without
prominently informing, during the initial setup or
installation of a connected television, either the user or the
person designated by the user to perform the initial setup or
installation of the connected television.
2)States that any actual recordings of spoken word collected
through the operation of a voice recognition feature by the
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manufacturer of a connected television or a third party for
the purpose of improving the voice recognition feature,
including, but not limited to, the operation of an accessible
user interface for people with disabilities, shall not be sold
or used for any advertising purpose.
3)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 that the user chooses to use in the
cloud or are downloaded and installed by a user.
4)Does not apply to satellite or cable television corporations
regulated under Section 637.5 of the Penal Code.
5)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.
6)Defines, among others, 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 inches,
but does 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; 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.
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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
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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".
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 7
$2,500 against a 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.
Prior Legislation
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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
died in the Assembly Public Safety Committee.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
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Page 9
SUPPORT: (Verified9/4/15)
Privacy Rights Clearinghouse
OPPOSITION: (Verified9/4/15)
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
Prepared by:Tobias Halvarson / JUD. / (916) 651-4113
9/4/15 18:27:54
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