Television broadcasters have long been able to track their shows’ popularity. But a new bill introduced in Congress last week aims to regulate technology that would go even farther by using actual cameras and microphones on TV set-top boxes or DVRs to record viewers’ reactions to advertisements.

On June 13, the We Are Watching You Act (H.R. 2356) was introduced by Representatives Walter B. Jones (R-N.C.) and Michael Capuano (D-Mass.).  That bill, if enacted, 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 Congressman Capuano, such technology is not yet in use—last year, the U.S. Patent and Trademark Office rejected one company’s patent application for such a system, and other companies have also reportedly explored similar technology. But the two lawmakers hope to put regulations in place preemptively, informing consumers and allowing them to opt out of such surveillance should it become a reality.  Said Congressman Capuano, “[t]his 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 NSA’s PRISM program, bills such as H.R. 2356 address a growing sense of consumer unease about how consumer data is collected and used.  Though the applicant for the patent said 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 not likely, but it highlights the fact that implementing innovative targeted advertising strategies in TV will continue to be a challenge for the ad industry.  It’s important for companies operating in this space to strike a balance between technological innovation and consumer privacy interests.

This post was written by Frederick Lah and Kimberly Chow (Summer Associate).