Vizio Class Action Claims Smart TVs Contain Tracking Software

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A New Jersey man has filed a proposed class lawsuit against popular smart TV maker, Vizio, for secretly collecting information about what he watches through a real time data tracking system and sharing it with advertisers and data brokers without his consent.

The claim, which seeks statutory, punitive and actual damages on behalf of other Vizio TV owners, calls into question consumers’ privacy and how to regulate a new generation of Smart TVs that can capture sensitive data from consumers’ homes.

In the Vizio lawsuit, filed Wednesday in New Jersey, Fred Blumberg claims he bought two Vizio Smart TVs—from Walmart and Costco—and connected them to his household wireless network.

Only later, Blumberg claims, did he discover that the Smart TVs are configured with an “invasive” tracking software that regularly scans and monitors the programs as well as other media being viewed in order to obtain users’ personal viewing habits.

Blumberg contends that Vizio determines the date, time, channel of programs, and whether users watch them live or recorded.  The viewing patterns are then connected with a user’s IP address – the Internet address that can be used to identify every device in a home, from the household TVs to mobile phones to gaming consoles.

The lawsuit alleges that Vizio collects this sensitive information via tracking software provided by its subsidiary, Cognitive Networks, and then collaborates with third-party advertisers in order to match custom and targeted advertisements to specific households or individuals.

In practice, this implies that Vizio may have detailed records about the TV and Internet habits of numerous Americans.

One of the key issues in the case is the alleged lack of consent on the part of the average consumer when it comes to the TVs collecting their data, a violation of the Video Protection Privacy Act (VPPA).

The VPPA prohibits a “video tape service provider”—any company engaged in rental, sale or delivery of audio visual content and not necessarily just video tapes—from divulging any personally identifiable information about its customer to a third party, except where the customer has clearly consented to such data sharing,

This includes any information that so much as “identifies a person as having requested or obtained video materials or services from a video tape service provider” which is precisely what Vizio’s Smart TV features do, according to Blumberg.

“Average consumers in the market for Smart TVs do not have the knowledge to understand what Defendant’s tracking software is doing on their own. Instead, they trust Defendants to honestly disclose the tracking software,” the lawsuit states.

According to the lawsuit, Vizio fails to disclose the existence of their monitoring program, and instead installed and operated their tracking software without consumer consent, relying on an automatic “opt-in” policy under which they agree to turn over the data by default.

And while consumers can turn off the data collection, central to the Blumberg’s lawsuit is whether or not Vizio is considered a video tape service provider and by providing an “opt-out” procedure instead of an “opt-in” process, in is violation of the VPPA.

Blumberg is seeking certification for Class of nationwide consumers who purchased Vizio Smart TVs along with an order to prevent Vizio from continuing to operate their Smart TV tracking software.

Vizio, based in Irvine, Calif., is a private company, founded in 2002 and is ranked as the #2 retailer in the U.S. smart, high definition television, or HDTV industry. The company made $3.14 billion in sales in 2014 and is facing at least two other class action complaints in other states.

Cognitive Media Networks is also named as a co-defendant alongside the TV maker. Cognitive’s Automatic Content Recognition (ACR) technology is essential to Vizio’s ability to track users’ viewing habits, so much so that it acquired the San Francisco-based company in 2015 and renamed it Inscape Data Services.

Blumberg is represented by David S. Senoff, Sol H. Weiss, Melissa Fry Hague, and Paola Pearson of Anapol Weiss Law.

The Vizio Smart TV Class Action Lawsuit is Fred Blumberg v. WPP Group USA Inc., et al., Case No. 3:16-cv-02670, in the U.S. District Court for the District of New Jersey.