The Television Is Listening: Smart Television Microphones, All-Party Consent, and the Households Where Reality Testing Failed

Abstract

For a period now measured in years, patients who believed the television was listening were told that it was not. They were told by clinicians conducting reality testing, the core technique of cognitive therapy for persecutory delusions, and by family members conducting the ordinary work of reassurance. For some households that statement was false. The device did contain microphones; its manufacturer's own voice agreement concedes that a hands-free feature may capture speech on a false wake without notifying anyone; independent researchers have measured the recognition traffic; and a state attorney general has sued, settled, and obtained a consent decree. This Article argues that the resulting harm to that population is not a privacy injury and is not adequately described as distress. It is the corruption of a disconfirmation channel: the treatment mechanism clinicians and families relied on was operating on a premise nobody could verify and that was, for some patients, wrong, and the reassurance itself, delivered into a belief system that resolves ambiguous social information toward threat, became information about the person delivering it. The Article grounds that harm in law. In Illinois and every other all-party consent jurisdiction, the recording is an offense on the statutes' own definitions, the manufacturer is a principal under the Illinois article's definition of one, and the manufacturer's own terms supply the knowledge element by naming wiretapping and eavesdropping law and assigning compliance to the purchaser. Where a public entity requires attendance in a room containing one of these devices, and where a retailer sells one without disclosure, the effects provisions of the Americans with Disabilities Act reach a burden that falls on this population in a manner different and greater than on others. And the self-help remedy, removing the software, is foreclosed by an anticircumvention regime whose privacy exception a defaulted toggle defeats, whose smart television exemption omits the removal clause written for telephones and voice assistants, and whose rulemaking cannot by statute reach the provision doing the foreclosing. Every remedy obtained or enacted to date is a consent remedy. Those are the right answers to the problem the enforcement identified. They are not answers to this one.

Keywords

• persecutory delusions
• reality testing
• behavioural experiments
• belief flexibility
• therapeutic alliance
• smart televisions
• voice recognition
• eavesdropping statutes
• all-party consent
• ADA Title II
• ADA Title III
• DMCA section 1201