Burger King’s Scheme to Turn On Google Home: Outrageous But Not Illegal

Apr 13, 2017

Burger King aired the most annoying commercial in history this week: A shrieking fast food employee waving a hamburger and who says, "Okay Google, what is a Whopper burger?"

The TV ad is insufferable, but it could have been infinitely worse for the millions of Americans who own a Google Home device. For them, the employee's words were intended to activate their device and prompt it to define a Whopper.

Fortunately, Google stepped in to prevent the commercial, which aired on shows like Jimmy Kimmel Live on Wednesday, from setting off what the New York Times' called "corporate warfare in the living room."

In retrospect, the whole episode was likely a stunt to gin up free publicity for Burger King. But it also raises the question of what's to stop another company from trying the same thing—using a TV or radio ad to force a Google Home or an Echo (Amazon's competing device) to be part of their marketing campaign.

The answer, from a legal perspective, appears to be that nothing can stop them.

"Google (and others) literally “opened the door" to this new hack when they put 'always on' devices in the home. We warned the FTC of the basic flaw in the architecture — it is not simply the owner that activates the device ... They didn't 'listen,'" Marc Rotenberg, the president of the Electronic Privacy Information Center, told Fortune by email.

Rotenberg says his group asked the Federal Trade Commission to examine whether the devices may violate the Wiretap Act or the agency's laws against unfair and deceptive marketing practice, but the agency declined to open an investigation.

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The FTC declined to comment on the Burger King affair, or whether it would take any action to prevent similar stunts in the future.

The Burger King incident isn't the first time a company's use of Google Home as a marketing tool has come under scrutiny. In March, the device began touting the arrival of Beauty & the Beast in cinemas at the end of its regular news summaries for users, though Google has suggested this was not intended as an ad.

More broadly, the arrival of always-on devices that play and record what we say carry a host of legal and privacy implications. Earlier this year, for instance, police in Arkansas obtained a search warrant to learn whether an Amazon Echo had recorded evidence of a murder.

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