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Privacy Rights in the Digital Age

“We Are Watching You” Act

by Ashley Baker

A bill introduced in the U.S. House of Representatives in 2015 to regulate mass, corporate surveillance within the home through consumer electronics and video services. Because of previous privacy scandals, many Americans are now wary of the activities of the National Security Agency (NSA), which has been collecting information about U.S. residents from their electronic devices. Currently, many Americans are unaware that the government is not alone in its endeavor to collect and analyze the data of the general population. Many private corporations, such as Microsoft and Verizon, not only collect consumer data stored online and on personal devices but also use consumer devices with video capabilities to surveil individuals in their homes. To curtail this practice, some members of Congress have sought to regulate this activity through the introduction of House Bill 1164, known as the “We Are Watching You” Act.

Within the average American household, one can expect to find one or more electronic devices such as a computer, tablet, smartphone, videogame console, or television. It is likely that each device includes a camera and the capability to access the Internet. The ability of devices to create and store data through cameras and the Internet has enhanced the ability of corporations to gather new and different types of data via video surveillance within the home. Microsoft's Kinect, for example, has the capacity to observe and record everything within its view. Thus, when consumers bring this technology into their homes, they have, likely unintentionally, invited Microsoft to observe their habits within that space. Microsoft's privacy policy states, however, that it collects pictures and videos of consumers only while they are engaged with the Kinect, that is, when an individual is actually playing the game or using the Kinect's camera functions to watch movies or complete other entertainment tasks. Although Microsoft's privacy policy does not specifically list continuous video surveillance as something in which it engages, it is clear that the console has the capability to do so. Similarly, in May 2011, Verizon filed for a patent for a DVR that can track the movements of users. Neither of these corporations currently monitor consumers via camera, but according to their current privacy policies, they certainly have the technological and legal capability to do so with a one-sentence revision to their privacy policies. With this reality in mind, Representative Michael E. Capuano (D-MA) introduced the “We Are Watching You” Act in 2013. The bill did not gain any traction initially. Therefore, Representative Capuano reintroduced the bill (H.R. 1164, 2015) on February 27, 2015.

The “We Are Watching You” Act attempts to curtail the ability of corporations to surveil consumers through electronic devices. Specifically, the bill requires companies “to provide for notification to consumers before a video service collects visual or auditory information from the viewing area and to provide consumers with choices that do not involve the collection of such information” (H.R. 1164, 2015). The bill specifies that the notification must read “we are watching you” as an onscreen message continuously while the information is being collected. In addition, companies must provide traditional notifications and descriptions of what and how information is collected as part of the terms and conditions as well as the written instructions for the product or service (H.R. 1164, 2015). The fact that a user knows that his or her information is being collected does not mean, however, that the individual will discontinue use of the service.

Many companies that gather data on consumers have significantly greater bargaining power than consumers. Standard terms and conditions, which detail how and when information is collected, typically condition the use of the service on consent to all of the terms contained therein. If consumers do not wish to have their data collected, they must decline use of the service. Most consumers are not mindful enough of personal privacy concerns to abstain from using the goods or services. Users either disregard or consent to terms because they believe the value of the goods or services is greater than maintaining their personal privacy. Thus, the act's requirement that companies disclose the fact that they are gathering information alone will not likely effect consumer privacy but would only reiterate the Federal Trade Commission's (FTC's) lax requirements, which only prevent consumer fraud. The drafters of this bill, however, anticipated that a disclosure requirement alone would not be enough to quell the potential degradation of privacy in the modern world. Thus, the act seeks to impose a level playing field.

To allow consumers to preserve their privacy without the cost of losing goods or services, the “We Are Watching You” Act prevents companies from requiring consumers to opt-in to surveillance in order to take advantage of their services. The act states that operators must offer an “alternative video service that does not involve the collection of such information, but is otherwise identical” (H.R. 1164, 2015). This provision takes an unprecedented stance in regard to the preservation of consumer privacy because the service provider must not only allow for an alternative service but the alternative service must be equal to the service that consumers who choose to opt in receive. No longer would consumers be forced to choose between privacy and service.

In its 2015 session, Congress has the ability to add new consumer privacy protections through the passage of the “We are Watching You” Act. If enacted, this legislation will authorize reasonable regulation of privacy settings in the United States, which would greatly enhance the privacy rights of American consumers.

Further Reading

1 

Brav, Hiawatha. “Would You Let Your TV Watch You?” The Boston Globe. June 14, 2013.

2 

https://www.bostonglobe.com/business/2013/06/13/capuano-seeks-curbs-spying/w5R6IL1tbQ4EzrypMH5aYJ/story.html.

3 

Foege, Alec. “Consumer Data Privacy and the Importance of a Social Contract.” Data-Informed.com. August 6, 2013. http://data-informed.com/consumer-data-privacy-and-the-importance-of-a-social-contract/.

4 

Payton, Theresa, and Ted Claypoole. Privacy in the Age of Big Data: Recognizing Threats, Defending Your Rights, and Protecting Your Family. MD: Rowman & Littlefield, 2014.

5 

Roberts, Brian F. 2011. Methods and Systems for Presenting an Advertisement Associated with an Ambient Action of a User. Patent Appl. No. 13/116784, filed May 26, 2011.

6 

Sundar, Sindhu. “Bill Would Regulate Spying Technology Aimed at TV Viewers.” Law360. June 14, 2013.

See also: Federal Trade Commission (FTC); National Security Agency (NSA)

Citation Types

MLA 9th
Baker, Ashley. "“We Are Watching You” Act." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0225.
APA 7th
Baker, A. (2016). “We Are Watching You” Act. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Baker, Ashley. "“We Are Watching You” Act." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.