Broadcasters have long been able to track the popularity of their shows. However, a new bill recently introduced in Congress aims to regulate technology that would go even further by using actual cameras and microphones on television set-top boxes or digital video recorders (DVRs) to record viewers' reactions to advertisements.

On June 13 2013 Representatives Walter B Jones and Micahel Capuano introduced the We Are Watching You Act (HR 2356). If enacted, the bill would require companies to obtain viewer consent before using surveillance devices embedded in set-top boxes and DVRs to track people's moods and reactions. The cameras and microphones would send cable companies data on the audience's activities, including comments, facial expressions, food consumption and general moods, as well as their age and gender. According to Capuano, such technology is not yet in use – in 2012 the US Patent and Trademark Office rejected one company's patent application for such a system and other companies have also reportedly explored similar technology. However, the two lawmakers hope to put regulations in place pre-emptively, informing consumers and allowing them to opt out of such surveillance should it become a reality. Capuano said:

"This may sound preposterous, but it is neither a joke nor an exaggeration. These DVRs would essentially observe consumers as they watch television as a way to super-target ads. It is an incredible invasion of privacy."

In the wake of revelations about the National Security Agency's PRISM programme, bills such as HR 2356 address a growing sense of consumer unease about how consumer data is collected and used. Although the applicant for the patent stated that "such futuristic patent filings by innovators are routine", such a system would almost certainly draw the ire of some consumers and public interest groups. The passage of this bill is unlikely, but it highlights the fact that implementing innovative targeted advertising strategies in television will continue to be a challenge for the advertising industry. It is important for companies operating in this space to strike a balance between technological innovation and consumer privacy interests.

For further information on this topic please contact Frederick Lah or Kimberly Chow at Reed Smith LLP by telephone (+1 212 521 5400), fax (+1 212 521 5450) or email (flah@reedsmith.com).

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