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Mr. BARTON. No information of the type we have been talking about, to my knowledge, of specific information or profiles about specific individuals released to law enforcement agencies or newspaper reporters or anyone, for that matter. As far as I know, there is no record of that ever having happened.

And that is a strong statement to make, because I could be proven wrong, but I do not believe I am wrong. And, secondly, our response to these concerns has been to redouble the industry effort to explain privacy concerns to our customers and to really strongly encourage both our companies and our own association to allow people to get off of lists.

I think that that program has been very successful. Pick up most catalogs that you get and virtually every one of them, they have notices there that they will take you off our list. We will not run your name on any specific or general list, if you don't want us to. So I believe, first, that we have been successful in meeting the concerns of the privacy protection study situation, and secondly, in terms of mailing lists, I will emphasize that, that there hasn't been any evidence and in fact anyone's privacy that it has been violated.

Mr. COBLE. I was going to get into evidence of abuse. If anybody has any information about that, I would be happy to hear it now, Mr. Chairman, or subsequently.

Mr. Stevenson, as a practical matter, are you or other colleagues of yours in your industry, as a policy matter, divulging information upon request?

Mr. STEVENSON. No, we are not. And I guess I would like to point out, too, there is no pattern of abuse in the retail, on the retail side either. There are several instances that we are aware of, but if I go back over the last 7 years in the 100 million tapes that Erol's has rented, we have three instances of requests, that I am aware of, and we have never divulged information.

If someone calls us and says somebody is going to rent an apartment, can you give us some credit history? We won't even reveal if a person is a member of Erol's, because you have to be a member of the club, quite obviously, to rent tapes, as many of you know.

Mr. COBLE. This question, Mr. Stevenson, is one-I am not interrogating. I am just asking out of curiosity.

Has public opinion over the Bork incident affected rentals significantly one way or the other? Can you tell that?

Mr. STEVENSON. Well, since that—there are a lot of things that affect rentals, but our business is about 30 percent ahead of the same period last year, so it really hasn't affected it. We did have a handful of phone calls from people that were concerned, but it was insignificant out of 800,000 members.

Mr. COBLE. Good to have the panel here.
No further questions, Mr. Chairman.

Mr. BARTON. I mentioned as an aside, I think half that 30 percent in the business has been from my family.

Mr. KASTENMEIER. The gentleman from California, Mr. Berman.

Mr. BERMAN. I know where the other half has been. I would like to ask the ACLU to explain a little bit what the concept of privacy from the ACLU point of view is. Is it a sense of the right to not have one's space invaded?

Is Senator Leahy's privacy invaded by all of that mail that is coming from groups that bought the Kung Fu mailing list?

Are my constituents' space invaded when they write me letters saying take me off your darned mailing list? Is their privacy right being invaded by that or is it the public disclosure of information about me, or the private disclosure to others that do not consent?

Give me a sense of what privacy right we are talking about here.

Ms. GOLDMAN. You touched on a number of issues that came up during this hearing. One is that the right to privacy is not just the right to be left alone, but it is the right to be able to live certain areas of our lives outside of the public eye.

Mr. BERMAN. Is the right to be left alone?

Ms. GOLDMAN. It is more than just that. It is the right to be left alone, but is also the right to be able to conduct certain areas of our lives outside of the public aye and to not feel as though people know things about us which we do not want them to know, particularly issues that we are dealing with here today that touch on the First Amendment.

What we have here are First Amendment protected materials, library records, video records and that goes to the heart of a First Amendment issue, about what we read, what movies we watch, how we think, what our preferences are, and I think that what Senator Leahy expressed is a common feeling among most citizens, which is that when you get a piece of mail, which is clearly targeted to you and targeted to your preferences, targeted to your likes and dislikes, you wonder, "who knows this about me?"

“Where did this information come from? Where is this list, who else has it?" When you don't know, it can be very disconcerting. So it is not really the receipt of the mail which is of such concern, but it is who knows this information about me. How can they target me so carefully? Even people in my office have raised these questions.

Someone came into my office a couple weeks ago and said, "How did the Association of Retired Persons know that I am about to turn 55? How did they know to send me this mailing and say it is time for me to join?”

Another person said, "How did they know my son made the dean's list and maybe I want to get him a credit card?”

Mr. BERMAN. And this gets to a privacy concern, as far as the ACLU is concerned.

Ms. GOLDMAN. Absolutely. It is not just the Bork incident, not just the unauthorized disclosure to the public of this information. It is the disclosure within the private sector from company to company, which is very disconcerting, and which raises the possibility that there could be that unauthorized disclosure.

Mr. Barton says that there has been no demonstrated abuse in history and that might be true and that is wonderful. So why shouldn't they, along with Erol's and the Video Dealers Association and library community support a strong piece of legislation, if it comports with what they are doing now?

If it buttresses the industry practice, that is absolutely wonderful. That is the strongest reason to join in supporting this.

Mr. BERMAN. That does raise a question which I was going to ask Mr. Barton in a moment. You say ACLU supports both bills allowing disclosure of the name and address of the patron, where such disclosure does not directly or indirectly reveal the title or content of the service used, and the individual has been given an opportunity to prohibit the disclosure. As I understand it, now, there is no general law that gives an individual a right to prohibit disclosure.

Ms. GOLDMAN. That is right. Mr. BERMAN. Mr. Barton attaches to his testimony, examples of what he presumably thinks are sincere efforts by his members to inform people of their right to have their name—not of perhaps the privilege that

Mr. BARTON. I would rather say privilege, but I understand what you are talking about.

Mr. BERMAN. Shifting for a second, why wouldn't you support as a general rule a law that says that before a mailing list can be exchanged or rented, that the people on that list have the right to have their name removed?

Mr. BARTON. I don't know at this point whether or not we would support it. We may support it. We may not support it. We would have to look at the language and work it out.

Our general feeling is that our self-regulation has worked. It works well, and that you always run into a danger when you start putting this like that in legislation, you go way beyond what your original intent is.

A practice in the industry right now is to inform people of their right to get off lists and to provide them that opportunity. But there are many, many ways you can do that and I would have to look at the language of a bill like that carefully. The point I wanted to make is this bill does not comport with the way we do this now.

It puts many more restrictions on and it does it with no evidence at all of any violations of privacy.

Mr. BERMAN. I understand that. When you say we believe that any person renting or exchanging a mailing list should be able to describe the character or nature of the video rented, would you want the opportunity to purchase the mailing list of Erol's club members, a simple list of members, names and addresses?

Mr. BARTON. Yes. Mr. BERMAN. Erol, what is your policy with respect to people who want to do that?

Mr. STEVENSON. We have never sold a mailing list at the present time.

Mr. BERMAN. Have you leased it or let other people look at it? Mr. STEVENSON. No.

Mr. BERMAN. What if a VCR manufacturer says I would like to know people in the Washington area who have tapes. We have a new advanced style that allows the unauthorized copying-no. We would like to see these.

Mr. STEVENSON. At this point they can't. There has been some discussion within the company to consider selling the general mailing list itself of just members' names and addresses, but at this point we haven't. We don't, at—we haven't sold any lists at this point.

Mr. BERMAN. What if you just want the list of all people who have taken out “Desperately Seeking Susan," because one of the

I see

client members wants to peddle Madonna posters, and they are interested in that? I am wondering, Mr. Barton, if you think you should have a right to get a list of people who rented that movie.

Mr. BARTON. Let me state this in both philosophical terms and practical terms. In philosophical terms, yes, because we really believe that getting that list doesn't reveal anything about anybody, because nobody looks at that list. It is a specific letter to a specific person.

From practical terms we recognize the concerns of that and we would not oppose a restriction on that.

Mr. BERMAN. A restriction on a specific title?
Mr. BARTON. Yes.

Mr. BERMAN. You would oppose a restriction on anything which described the character or nature of the video rented. I guess the problem here as you can find a lot by asking a superficially general but in reality very narrow kind of question or seeking a very limited kind of thing. What if it is to purchase a list of people who are members not of Erol's, but of the Sex Video Club around the corner that has the barricaded, walled off sections for adult videos.

Mr. BARTON. Well, if I could go if I could say, yes, but also say I would say the same

Mr. BERMAN. Yes, to what?
Mr. BARTON. That we are not supporting pornography here.
Mr. BERMAN. God forbid, none of us are.

Mr. BARTON. I believe you should be able to rent the list. I will explain why I use the word "rent" in a moment because almost nobody gives up their lists. That you should be able to rent names of people who are interested by virtue of their buying habits and patterns in specific types of products or general types of products. This does not violate anybody's privacy.

I think that people, for example, who sell sporting goods, sporting goods might be very interested in, and it violates nobody's privacy, renting "Sporting Life" or "Sports Illustrated" lists. I don't know whether those companies rent their lists, but I don't see an invasion of privacy there. I don't see Congressman Berman being able to take their list and going in and finding out that Richard Barton is a reader of "Sports Illustrated," and interested in sports.

The only physical manifestation of that piece of information is the mailing list label that goes to you as an individual. That is-it is very difficult to go in, almost impossible to go in and get a specific piece of information off of a mailing list, which is a big computer tape, about a specific person.

If we want to prohibit that, I say we don't do it now, but I think we can talk about that.

Mr. BERMAN. I have far exceeded my time. Thank you, Mr. Chairman.

Mr. KASTENMEIER. The gentleman from Ohio, Mr. DeWine.

Mr. DEWINE. Thank you, Mr. Chairman. Let me give you a hypothetical and see if you have a reaction to it.

Let's say you have a child custody case, or visitation case. The custodial parent alleges that the noncustodial parent, who has the 10-year-old child as a ritual, goes with the child, picks up an Xrated movie, pornography, goes back home and they consistently, every Friday night watch these movies.

The custodial parent further alleges that as a result of that, when the child comes back on Saturday or on Sunday, the child is upset. The child has nightmares, and that it is affecting the child. The matter is in dispute between the two parents. The judge, who is deciding the case, and is listening to a lot of different evidence, a lot of different testimony, decides that it is a relevant question.

He or she would like to know that fact. Am I correct that under this bill a judge in the State of Ohio or the State of Kentucky or California, could not issue an order to obtain those records?

Ms. KRUG. If it were library records, that is exactly what we would need-a judicial order.

Mr. DEWINE. Under this bill?
Ms. KRUG. Under these bills, both of them.
Mr. DEWINE. Where in the bill can that be done?

Ms. GOLDMAN. The House bill does not provide for the release of the information in a civil proceeding. The Senate bill does.

Mr. DEWINE. I am looking at the House bill, and it is my understanding that under it this could not be done, even if there has been a showing to an impartial judge that this is a relevant piece of information.

My reading of the House bill is that the only exception, and I will get into this in a minute, has to do with a criminal proceeding.

Ms. GOLDMAN. I think the distinction here is that where you have First Amendment protected information, you need a very high standard of protection such as we have here in the House bill, and that that information can be obtained by other means besides the release of information.

Mr. DEWINE. It would be your position then that my right of privacy that I checked out an X-rated movie is higher than the good of that particular child.

Ms. GOLDMAN. Not necessarily.
I think we support the House bill-
Mr. DEWINE. Not necessarily. That is an interesting answer.

Ms. GOLDMAN [continuing). We support the House bill because it provides for a stronger position. But we also do support the Senate bill. That is something that we are open to talk about.

Mr. DEWINE. Do you think that is a problem, that there is no general exception in here that would allow a State court, and I have just given one example and there could be many, many reasons, to issue an order covering such information.

I mean there is no exception other than this criteria that appears on page 4. The court has to find by clear and convincing evidence that the user has engaged in criminal activity.

Ms. GOLDMAN. We do not have any problem with that. We do support the provision in the Senate bisl.

Mr. DEWINE. Let me carry this another step further and just say that I also have a problem with the criminal aspect of this, and I think law enforcement will and I will be anxious to hear what they have to say about it.

But my understanding of the way the House bill is written today is that a grand jury conducting a legitimate investigation could not get any of the records that we are talking about, unless by clear

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