Order to Track TV Recorder Criticized

Privacy advocates and electronics companies Friday blasted a federal magistrate’s order requiring the manufacturer of a new personal video recorder to monitor and report everything viewers do with the devices--from what they watch to which commercials they skip.

The order by Magistrate Judge Charles F. Eick in Los Angeles is unusual, and possibly unprecedented, in that it requires Sonicblue Inc. to write and install new software to gather data about users of the ReplayTV 4000. Sought by a group of Hollywood studios and TV networks, Eick’s order represents the latest front in a high-stakes battle between technology companies and copyright holders over what consumers can and cannot do with digital devices.

David Martin, who follows personal video recorders for the Privacy Foundation, said the order was “worse than just a privacy squabble.”

“Our courts have no business ordering a company to spy on its own customers just because big media wants to put the company out of business,” he said.

The case pits some of the world’s largest media companies, including AOL Time Warner Inc., Viacom Inc. and Walt Disney Co., against Sonicblue, a Santa Clara-based manufacturer of consumer electronics. The studios and networks claim the ReplayTV 4000 has two features that violate copyrights: It can send recorded programs to other Replay units over the Internet, and it can skip commercials automatically as it plays back recordings.

Eick gave Sonicblue until the end of June to start gathering “all available information about how users of the ReplayTV employ the devices, including all available information about what works are copied, stored, viewed with commercials omitted, or distributed to [others], when each of those events took place, and the like.” That data must be turned over to the plaintiffs, along with any other information about user behavior.

Representatives of Viacom and Disney said they weren’t trying to spy on the public but simply sought to gather the data needed to protect copyrighted programs. “We respect viewer privacy and the order we obtained respects that important right,” Disney said in a statement.

But officials at the Electronic Frontier Foundation, the Electronic Privacy Information Center, the Privacy Foundation and the Consumer Electronics Assn. expressed outrage over the order, saying it poses serious risks to the public. Sonicblue plans to appeal Eick’s order, and the EFF and EPIC plan to support the appeal.

“The reasonable expectation [of users] is that we are not being monitored in our television viewing by a court,” said Megan Gray, senior counsel for EPIC. Although the order calls for Sonicblue to turn over the data with random numbers in place of viewers’ names, Gray said the anonymity could be lost later if the plaintiffs decided to demand the names.

Viacom spokesman Imara Jones stressed that the studios had no interest in the identities of ReplayTV owners, but did need to see “individual use patterns” to build their case. He also noted that Sonicblue’s privacy policy says the company collects anonymous data from ReplayTV units about how the devices are used, although Sonicblue representatives say they stopped collecting data long before the new models hit the market.

“This move is yet another example of Hollywood trying to use copyright law to take control of the engineering decisions of technology companies,” said Fred von Lohmann, an attorney at the EFF.