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Converging Media

Is Your Television Watching You?
By Phillip Swann

Could the federal government find out what you're watching on TV? Even if you're not the subject of a criminal investigation?

If you're a satellite TV or TiVo owner, the answer is yes, according to legal experts and industry officials.

Under the USA Patriot Act, passed a month after the 9/11 terrorist attack, the feds can force a noncable TV operator to disclose every show you have watched. The government just has to say that the request is related to a terrorism investigation, said Jay Stanley, a technology expert for the American Civil Liberties Union.

Under Section 215 of the Act, you don't even have to be the target of the investigation. Plus, your TV provider is prohibited from informing you that the feds have requested your personal information.

"The language is very broad," Mr. Stanley said. "It allows the FBI to force a company to turn over the records of their customers. They don't even need a reasonable suspicion of criminal behavior."

David Sobel, general counsel for the Electronic Privacy Information Center, a Washington think tank, said the Cable Act of 1984 gives cable operators greater protection against the Patriot Act. Cable companies do not have to release an individual's records unless the feds show that the person is the target of a criminal investigation. Even then, the individual must be notified of the request, which he can then challenge in court.

"The Patriot Act does not override the Cable Act," Mr. Sobel said.

You couldn't blame the satellite TV industry for feeling a little vulnerable these days. DirecTV, for instance, collects a large amount of individual data, such as program package orders, pay-per-view orders and even online purchases via the DirecTV-Wink interactive shopping service. The Justice Department could ask DirecTV to disclose whether you subscribe to Playboy or purchased Viagra if it would help an investigation.

But Andy Wright, president of the Satellite Broadcasting Communications Association, the industry's trade group, said he does not believe the feds will make frivolous requests.

"They still have to issue a subpoena to get the data," he said. "Even in today's environment, I can't imagine a judge would approve a subpoena that is not warranted."

However, the ACLU's Mr. Stanley said the Patriot Act is different because the government can get the order from the special Foreign Intelligence Surveillance Act court rather than a judicial court.

"It's not like a subpoena. The standards are much weaker than [in] a criminal case," Mr. Stanley said.

But Mr. Wright contended that satellite TV viewers should not be concerned that they will be subjected to improper searches. The satellite chief added he's not sure the federal government needs to give dish owners the same protection as cable viewers.

"I would have to study that more before supporting that," Mr. Wright said.

ANXIOUS TIMES

The Patriot Act, which Attorney General John Ashcroft said is crucial to fighting terrorism in the United States, has scared many civil libertarians. However, the possibility that the feds could use the law to learn about your viewing habits has been overlooked until now.

The invasion of privacy might be well intentioned and perhaps even necessary. However, there's also the danger that an overzealous team of agents will abuse the law. In the spirit of the early patriots, all Americans need to remain vigilant.#

Phillip Swann is president and publisher of TVPredictions.com. He can be reached at Swann@TVPredictions.com.