On December 23, 2015, Girard Gibbs filed a class action lawsuit in California Federal Court alleging that that Vizio Smart TVs contain a default feature that tracks what viewers watch. According to the lawsuit, Vizio reportedly matches this information with its customers’ IP addresses, allowing Vizio to sell personal information about its customers’ TV habits to third parties for profit.
Eric Gibbs Appointed Lead Counsel
After a number of lawsuits were filed in federal courts throughout the country, the cases were consolidated and sent to the U.S. District Court for the Central District of California, under Judge Josephine Staton.
Attorneys from across the United States submitted applications to Judge Staton to help lead the litigation on behalf of consumers, and on June 8, 2016, the Court appointed Eric Gibbs as co-lead counsel. Eric and his co-lead will coordinate and oversee the litigation on behalf of the plaintiffs, supported by a small Plaintiffs’ Steering Committee made up of plaintiffs’ attorneys throughout the country.
Court Denies Vizio's Motion to Dismiss
On December 16, 2016, the California Federal Court held a hearing to consider Vizio’s request to dismiss the Plaintiffs’ class action complaint. Andre M. Mura argued the motion to dismiss on behalf of the plaintiffs in the case.
On March 2, 2017, Judge Staton issued an order largely denying Vizio’s Motion to Dismiss the case, which means that the lawsuit can continue into the next phase, and plaintiffs will be permitted to file a second consolidated complaint if they so choose.
The Court’s order on the motion to dismiss is particularly significant for its discussion and analysis of the Video Privacy Protection Act (VPPA), a federal law that prohibits any video tape service provider from disclosing their consumers’ personally identifiable information to third parties. Vizio argued that the plaintiffs’ VPPA claims should be dismissed, challenging whether Vizio could be considered a video tape service provider, whether the plaintiffs are consumers, and whether the defendants disclosed personally identifiable information as defined by the law. The Court provided a detailed analysis of each of the elements and ultimately denied Vizio’s motion to dismiss the VPPA claims.
Vizio Files, Court Denies Another Motion to Dismiss
On April 13, 2017, Vizio filed a second motion to dismiss. Vizio argued that Plaintiffs’ claims under the Wiretap Act should be dismissed because “[t]he Wiretap Act only prohibits the acquisition of ‘the contents of any wire, electronic, or oral communication.’” Vizio argued that the information it “allegedly intercepted, such as ‘viewing habits’” was not content, but rather was metadata (or “’record’ information,” under the Wiretap Act).
On July 25, 2017, the Court denied Vizio’s second motion to dismiss. The Court ruled in Plaintiffs’ favor on the Wiretap Act claim, quoting from one of Vizio’s patents, stating that Vizio’s tracking software “takes samples of the programming actually being displayed on that TV at any point in time and sends the fingerprints of those samples to the centralized fingerprint matching server.” The Court held that these “samples” could be considered “content” under the Wiretap Act.
“Smart Interactivity” Tracks Viewing Habits...
According to a report by ProPublica, “Smart Interactivity,” a feature turned on by default in over 10 million Vizio Smart TVs, analyzes what a viewer is watching, including the date, time, and channel, and whether a viewer watched the programming live or recorded.
Smart Interactivity reportedly sends this information to Vizio and connects it to individual customers’ IP addresses, which are digital identifiers shared by other devices in the home, including laptops and phones. The report describes how “IP addresses can increasingly be linked to individuals. Data broker Experian, for instance, offers a ‘data enrichment’ service that provide[s] ‘hundreds of attributes’ such as age, profession, and ‘wealth indicators’ tied to a particular IP address.”
Vizio claims on its website that the Smart Interactivity feature simply “collects information from your product which triggers events, such as pop-ups, about what you are viewing,” and that it “may display accompanying interactive features such as bonus features related to the content you are viewing, the ability to vote in polls, or advertisements that match your interest.”
According to a report by the Washington Post, a Vizio spokesperson said that the data mining programs are part of a “revolutionary shift across all screens that brings measurability, relevancy and personalization to the consumer like never before.” Vizio said it shares “aggregate, anonymized data” with media and data companies so they can “make better-informed decisions” about content and advertising strategies.
While other electronics companies reportedly capture user data, Consumerist reports that Vizio “goes farther than the competition.” While Samsung and LG also reportedly perform data collection, the tracking features in those companies’ products require customers to affirmatively turn the feature on.
Unlike Vizio, Samsung and LG also don’t appear to provide the information in a form that allows advertisers to reach users on other devices. For example, according to Consumerist, Vizio does not encrypt the IP addresses of their users before sharing them with third parties. As a result, when combined with third-party sources of demographic information, Consumerist reports that Vizio can develop and sell individual profiles based on viewers’ watching habits and IP addresses. Because this information is tied to individual IP addresses, companies can target advertising based on viewing habits directly to individual households.
How to disable Vizio’s data tracking software
Cnet has put together a guide to disabling Vizio’s data-collecting feature.
Vizio Claims it Can Legally Sell Customer Data
Cable TV and video rental companies are generally prohibited from selling information about the viewing habits of their customers, pursuant to federal law.
According to the Washington Post, Vizio claims that these laws don’t apply to its business because the company associates IP addresses with the data, rather than a person’s name or other “personally identifiable information.” In fact, in an October 2015 filing with the Securities and Exchange Commission, Vizio promoted its ability to provide “highly specific viewing behavior data on a massive scale with great accuracy.”
Our Privacy Experience
Our data breach lawyers are currently representing victims of digital privacy violations in cases against Sony Pictures Entertainment, Home Depot, Experian/T-Mobile, Premera Blue Cross, Anthem, and more.