Yesterday, the Federal Trade Commission (“FTC”) announced that it issued warning letters to mobile app developers that installed software created by an entity called Silverpush that could allow third parties to monitor the television-viewing habits of consumers who have downloaded the mobile apps of those developers.  The letters were sent to 12 developers whose apps are available for download in the Google Play store and appear to include the Silverpush software.

According to the FTC, Silverpush’s software relies on “Unique Audio Beacon” technology that enables mobile apps to use a device’s microphone to listen for codes embedded in television audio signals to determine what television shows or commercials are playing on a television set within earshot.  The FTC states that the software is configured to access the device’s microphone to collect audio information even when the app is not in use, thereby allowing the app to collect information regardless of whether the user is actively using the mobile app.  According to the FTC’s letters, this technology could allow “Silverpush . . . [to] generate a detailed log of the television content viewed while a user’s mobile phone was turned on.”

In the letters, the FTC encourages these app developers to disclose to potential customers if their apps enable third parties to monitor the television viewing habits of users who download the app.  According to the FTC, the apps at issue do not presently notify users of this.  Although the FTC acknowledges that Silverpush has publicly represented that its audio beacons are not currently embedded into any television programming aimed at U.S. households, the letters warn app developers that “if your application enabled third parties to monitor television-viewing habits of U.S. consumers and your statements or user interface stated or implied otherwise, this could constitute a violation of the Federal Trade Commission Act.”