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and convincing evidence they can show that the user had been engaged in criminal activity.
In other words, it has to actually focus on the user and they must show by clear and convincing evidence, not beyond a reasonable doubt, but clear and convincing, that criminal activity has been conducted. I can envision cases where this type of information would be very useful to clear some people, for example, or very useful in a general investigation, when the person who checked out the book or the person who checked out the video was not the target of the investigation at all, and so I think that, Mr. Chairman, it is a certainly a well-intentioned bill.
I was as horrified as everyone else was, I think, by the Bork example. I think it creates a real problem. I think we can craft a bill that will protect in that type of circumstance, but I think the language here today frankly has some real, real problems.
Mr. BERMAN. Would the gentleman yield on that point?
Mr. BERMAN. Also in the House bill, as it is restricted to criminal proceedings, it all turns on the question of the prosecutorial interest in obtaining this information.
What about, to the extent it is relevant, and for purposes of a fair trial, the defendant's right to make his case or impeach earlier testimony? Should there be something?
Mr. DEWINE. That is an excellent point and I think the problem with the House language is that we are talking about the user.
We are focusing only on one individual and it could be that that type of information could be used as a defense, that there could be a third party involved, and you want to get that information in with the third party.
Mr. LEAHY. Mr. Chairman.
Mr. LEAHY. If I can interject for a moment, they just called for another vote. I think there are going to be a series of them, so I will probably have to leave at this point, but, I spent 842 years as a prosecutor and tried hundreds of felony cases and other cases personally.
I argued more cases over that period of time in the Vermont Supreme Court as well as the Federal Courts and Courts of Appeals. Also, incidentally, and this may sound terribly self-serving, but I had the highest conviction rate that any prosecutor ever had in this century, literally.
Actually, I argued more cases on appeal than all my predecessors for 180 years put together in that office. I never lost on one of those.
I can't think of a single instance where being able to subpoena records where somebody had checked out books—which would be mostly what would have been then-or tapes, could have any relevance in a trial that I might have had.
I had a variety of trials from bank robbery to murders, to environmental matters to embezzlement, to fraud, to blackmail. I can't think of a single instance where having these kind of lists would, one, help the investigation, and two, even if we had gotten them, would have been eligible for proof under any basis whatsoever.
Now, the Senate bill does have exceptions for civil discovery if there is some area where you have some kind of probative value, but I would suspect if I owned Erol's or owned any other video store, I wouldn't want to give up something like this unless there was a very specific court order where there had been the offer of proof and the usual steps that you have to take to get it.
I would want to be darn sure I had a court order in hand before I gave anything up just for my own protection. I suspect you would give that same advice to any store owner who called you. But I just, I suppose there may be something that I have overlooked somewhere in that experience that would say we should do it. I can't think of anything that would have proven anything.
Anyway, I pass that on for what it is worth. We do have civil discovery in the Senate bill.
Mr. KASTENMEIER. The gentleman from Ohio.
Mr. DEWINE. If I can reclaim my time, I think the problem, Mr. Chairman, is that the House Bill doesn't allow for that court order, there is no provision in there.
Like the Senator who spent many years in prosecution, I was involved in prosecution for 642 years. The one thing I learned is that every case is different. You never know what the facts are going to be and they change all the time. Having come out of that system, I am very comfortable with allowing a judge to make the determination of whether or not there is reasonable grounds to issue a subpoena or whether or not there is a reason to get this basic information.
The problem with the House bill, Senator, is that it simply does not allow that to be done. It doesn't allow a judge to make that determination at all. Only under very, very, very narrow circumstances. So, I think it is a question of flexibility and we need to take care of that problem.
Mr. KASTENMEIER. The Senator has had to leave to vote. I have one or two questions. The gentleman from Ohio points out that in fact there are differences between the House and Senate bills, slight differences, this being one, I think the gentleman from Ohio called attention to.
I would like to talk just a little bit about industry practices. Mr. Stevenson, obviously, the Bork case did not involve an Erol's Video Store because that would have been against your policy.
Mr. STEVENSON. Yes.
Mr. KASTENMEIER. And even though you speak for some 20,000 out of 30,000 potential stores, not only Erol's but other stores, there are not uniform industry practices in terms of these particular privacy concerns, I take it.
Mr. STEVENSON. Well, I think that in terms of uniform industry practice really goes to retention of records. I mean, you have the majority of the video stores are small, one-owner operations, and there is everything from personal computers that hold records up to Erol's which has a main frame computer to the person that has, you know, a card file of members. And so in terms of the way records are kept and the way that people market to their members or check out tapes are all different, but I would say generally speaking because it is a rental business, there is a record of that customer and what he checked in or out, whether it is on computer or whether it is within that computer or on a card, because there has got to be some way to get that tape back if it doesn't come back.
In terms of protecting the privacy of those records, based on what I know about the VSDA members and our own practices, information is not being released. Mailing lists, I am sure, are being sold of general memberships of video clubs and that kind of thing, but beyond that, I am not aware of any.
Mr. KASTENMEIER. Do you support passage of these bills before us?
Mr. STEVENSON. Yes.
Mr. KASTENMEIER. Having a uniform practice set down by statute would be preferable for the industry as a whole, you believe; is that not correct?
Mr. STEVENSON. Yes.
Mr. KASTENMEIER. As far as the libraries are concerned, since the library standards are really very protective, as you have recited, why is a bill on this subject necessary, Ms. Krug?
Ms. KRUG. For the very reason that the examples in my written testimony and the few that I tried to provide exhibit. We are often asked to provide records, particularly circulation records, which identify what people are reading, what they are borrowing from libraries, for use in ways that we consider to be inappropriate and definitely are not the reason or the purpose for which those records are kept.
We also recommend that, because we view circulation records as housekeeping records, once the materials are returned to the libraries, that the personal identifiable information is expunged from the record. Many libraries are moving in this direction, so you don't have records that go back hundreds of years or even 5 or 6 years.
In other words, once the material is returned, we have it back and, therefore, the record of who took it out can be expunged. But it is very serious to have someone impute a motive to you because of what you read. There are people who believe, number 1, if you don't have anything to hide, then it is OK to make it public, which I consider to be violative of the essence of humanness.
Second, if you read in specific areas, such as gay literature, you automatically are homosexual. If you read about witchcraft and the occult, you are automatically involved in that arena. If you read materials about any subject, perhaps beyond the mainstream, you automatically acquire those characteristics. These kinds of charges can be very damaging to individuals, both personally and professionally.
It is one of the reasons that we think again it is nobody's business what you read, but your own. The gentleman from Ohio, Mr. De Wine, pointed out some other instances where he felt that the circulation records or these kinds of records may be appropriate.
The truth is, Mr. Chairman, we don't ask people to take a litmus test or even a test of what they read when they bring the books back. We don't ask them what uses are going to be made of these materials. When I was in high school, for instance, I used to take books out of the library so my boyfriend would have something to carry home. I didn't want him to go home empty-handed. I know, library materials are used for lots of reasons, that being one end of the spectrum. Therefore, we believe the use for which they are going to use these materials is a private activity and should be treated as such.
Mr. KASTENMEIER. I would assume that it would make a lot more sense, rather than the libraries relying necessarily on association self-imposed standards with respect to privacy concerns, or indeed the differing State statutes in the 38 States and the District of Columbia, if there were a uniform statute on the question, that would be more helpful for libraries. Otherwise, they would have to conform to, in some cases, no laws at all, but rather to association, let's say regulations or practices, which may be perhaps more difficult to assert or would not have to be asserted if, in fact, there wasan understanding of what a Federal law on the subject would provide with respect to this question.
Would you not agree with that?
Ms. KRUG. We believe it would bring uniformity. It would cover the States that do not have such statutes. We believe it would be much easier to maintain the privacy and confidentiality of specific records if indeed there were a Federal statute.
Mr. KASTENMEIER. Mr. Barton, you mentioned that you had negotiated successfully with respect to the Cable Deregulation Act, in terms of practices or access on the part of Direct Marketing Association, and cable operators, but doesn't the Act, as I understand it, prohibit cable operators from disclosing, indirectly or directly, programs or other services that the subscriber might sign for?
Isn't that really a more difficult, a stricter standard than that which the bill would call for?
Mr. BARTON. We didn't think so at the time.
Our counsel back here, Ron Plesser, who worked on here, may be able to answer the question more authoritatively.
It does restrict our ability to rent cable lists more than I think we believe necessary at this time and more than we think necessary in the context of this bill. But the original proposal there was to prevent us from renting them at all.
At that time, we didn't really have a clear idea of what kind of information would be available and there was no question about the fact that when you went broadly into what the cable can do, particularly when it gets interactive and there are all sorts of personal transactions you can go on or that go on that you wouldn't want to know about.
Now, you are right, we can rent—the customer list of a cable company which right now is specific enough for us, but I don't believe we can rent if we break it down into HBO customers or whatever the specific channels are; isn't that correct?
Mr. PLESSER. I think that basic level of service can be segmented, but it is also important to note that there are no special cable operators. Cable operators sell to geographic areas.
They are not selling for example, camping equipment, so that you can, by the mere fact of getting a list, identify the character of the video.
Mr. KASTENMEIER. May I indicate to the stenographer that that is Ron Plesser who responded to that question. Is there a distinction to be made between video mail sales or rentals versus retail
video store rentals or sales, with respect to access for marketing for sale or rental of lists? Is there a distinction to be made?
Mr. BARTON. Yes and no. We would like, I think, as an industry, that no distinction be made but I think we recognize that what happened with Judge Bork and perhaps with other people is such a difficulty that we would back off on that. We would say that it would still be useful for us if we can go to Erol's and say, instead of renting your general customer list, we would like to know who is interested in sports and who is interested in this and that, but we recognize that the nature and form of the information Erol's has is easier to extract—we would not fight not being able to do that.
One step further is that the specific information that Erol's has which the people want is much more specific than we usually want to get in a rental list. Therefore, I think a valid distinction can be made in the law to limit this to the retail rental establishments. I think there is enough of a distinction and enough of a question of the immediacy of the information that is available and literally that can be gotten when you walk into a store and any clerk can punch it up, or at least in a sophisticated store, any clerk can punch it up on a screen, and I think from my personal viewpoint, and I believe from the association's, that is a legitimate distinction to allow to distinguish between retail and mail order.
Mr. STEVENSON. One real quick thing I wanted to point out about our system. It would be virtually impossible to generate a list today of people that were interested in golfing tapes, for example, or any particular rental category, because we don't store the information that way. We don't segment it that way.
If I can take a minute, I will run through it. If you go into an Erol's store and check out tapes, that information remains in the computer until you bring them back at the store level. Once those tapes have been checked back in, that information is transmitted to our central computer facility in Springfield, held for 14 days, put on a disk and shipped out to a vault someplace.
I don't even know where it is, and stored. But to reconstruct, say, a customer that has been with us 2, 3, 4 years would almost be impossible. The only reason the information has been retained is because Erol Onaran, who owns the company, at one time thought in the future we might be able to market directly to individuals at the store level, where if somebody checked out a certain number of times, you might suggest movies they haven't rented before at the point of transaction.
That is the only reason. We haven't kept them for any other reason, nor do we segment.
Mr. KASTENMEIER. Erol's is not, I take it, and I ask only for my own information, involved in a mail order business in addition to your retail outlets?
Mr. STEVENSON. We get involved in mail order from time to time through our magazine that we publish once a month, but as a practical matter, no.
Mr. KASTENMEIER. Does the prohibition against a video service provider retaining its records for more than one year, is that or would that be a problem for Erol's or any other dealer?
Mr. STEVENSON. In terms of being able to retain--