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Mr. STEVENSON. To comply. No, I don't think the way the bill is written, no.

Mr. KASTENMEIER. Thank you.

Are there further questions of my colleagues? The gentleman from California.

Mr. BERMAN. Thank you, Mr. Chairman. I am still confused by the direct marketer's notion of what they support and what they couldn't support. You say in the context of video, this legislation should be limited to retail rental establishments, leaving at least the implication that you would support legislation that was limited.

What is the logical distinction between a retail video establishment and a mail order video establishment?

Mr. BARTON. One of them is, as I mentioned, the immediacy of the information that is available, and the ease for it to be given out.

Number two--
Mr. BERMAN. I don't understand that.

Mr. BARTON. Well, you can walk into a video store and a clerk can give you the information you are asking for. You can't do that out of a mailing list. It is just-it doesn't exist in that form.

You could walk into the business office of a specific company and demand to see their transaction records, but that is the only way that you can get the kind of information that we are talking about, and that has never been done. People don't do that.

Mr. BERMAN. You are saying the reason for the distinction is that public disclosure is less likely to come from a mail order operation that we are getting our lists from than from a retail establishment that we are getting the list from.

Mr. BARTON. Public disclosure of the information we are talking about, yes, much less. It doesn't come from getting a name off of a mailing list. In the first place, it is physically almost impossible to do that. We are talking with just mailing lists, not the business records of our companies or anything like that which are similar to Erol's.

We haven't had a problem with that. The second reason and let's be frank, the retail industry is asking for it, and we are not going to get into a fight with the videotape rental industry. If they want to restrict it on that level, that is fine. If they want to be protected against being inadvertently or directly giving information, being sued, I think that is fine with us.

We in the mailing industry don't have that problem.

Ms. GOLDMAN. If I can add to that, I think one of the confusions here is that this legislation is not targeted at any particular industry. It is designed to protect certain kinds of information, regardless of whatever industry puts it out. I think that is a very important point that needs to be made here, because it is not as though the legislation is going after a particular industry.

Mr. BERMAN. It looks to me like just the opposite. This is legislation targeted at particular industries, rather than the kind of information. The books I might get from a book-of-the-month club would not be covered by this legislation, but books I get from the library will be covered.

The records, a lot of information that would seem to me to be of the kind of character that is covered in video stores will not be covered, because they aren't disseminated by those industries.

Ms. GOLDMAN. The other point made earlier is that Erol's, for instance, says it doesn't program its computer to call up information by subject matter. That is because they are not in the mailing list business, and it is not necessary to do that, but it is very easy to do that.

Because their computers are not programmed that way at this time, nothing at this point precludes them from doing that and from disclosing the information to the public.

Mr. BARTON. Mailing lists is not information disclosed to the public. We can pursue that.

Mr. STEVENSON. As a practical matter, it would be an inappropriate business practice. I mean, if we were to do that with a number of stores, for example, that we have in the Washington area, we would be out of business, I am sure.

Mr. KASTENMEIER. Mr. Barton, do you know of any other industry that might have concerns about these bills, other than your association?

Mr. BARTON. Not directly, but I could be wrong about that. I haven't really thought about that. I think you are dealing with the concerned industries right here, the four of us.

Mr. KASTENMEIER. Yes. The reason I ask is obviously the direct marketing associations do have concerns. We have had some concerns expressed about whether there ought to be court orders in civil actions available, and indeed, whether law enforcement might have some interest or concerns with respect to the bill.

But other than those concerns, I think there is a consensus that this legislation could be a step forward in addressing what is perceived as a problem.

And it is a good question raised by the gentleman from California as to whether it ought to be broadened or not. I guess we have tried to respond to what is perceived recently, in recent times, as a couple of potentially troublesome areas with respect to invasion of privacy, libraries and the video business. Some of the other industries or commercial applications, other types of book clubs and so forth, if-I guess, if there is not a perceived need, we have not attempted to broaden the legislation to include those areas.

That is why I think it is as it is today, as it appears before us. In any event, on behalf of the committee, I want to thank the four witnesses for their contribution this morning. We appreciate it

very much.

The committee stands adjourned.

[Whereupon, at 11:55 a.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.]




AUGUST 3, 1988

I am pleased to join with my colleagues in holding this joint hearing on legislation to protect one of the most treasured liberties of all, the right to privacy. There is no denying that the computer age has revolutionized our world. Over the past twenty years we have seen remarkable changes in the way each one of us goes about our lives. Our children learn through computers. We bank by machine. We watch movies in our living rooms. These technological innovations are exciting and as a nation we should be proud of the accomplishments we have made.

Yet as we continue to move ahead, we must protect time honored values that are so central to this society, particularly our right to privacy. The advent of the computer means not only that we can be more efficient than ever before, but that we have the ability to be more intrusive than ever before. Every day Americans are forced to provide to businesses and others personal information without having any control over where that information goes. Computer records are kept on where we travel, what we eat, what we buy, what we watch and what we read. These records are a window into our loves, likes and dislikes. As Justice Brandeis predicted over 40 years ago in his famous dissent in the Olmstead wiretap case

time works changes, brings into existence new conditions
and purposes... Subtler and more far reaching means of
invading privacy have become available... Ways may some day
be developed by which the Government, without removing
papers from secret drawers, can reproduce them in court
and by which it will be enabled to expose to a jury the
most intimate occurences of the home.

This point was brought home to me during the course of the confirmation hearings on Judge Bork when I learned that a reporter had received from a local video store a list of the movies that Judge Bork and his family had rented. Who would guess that the choice of movies one watches in the privacy of the home would not be confidential?

The Video and Library Privacy Act of 1988 takes an important step in ensuring that individuals will maintain control over their personal information when renting or


purchasing a movie or when borrowing a library book. The bill specifically provides for a federal cause of action in the event a list which identifies the books we read or the movies we watch is released. Since there are certain circumstances in which it may be necessary for this information to be divulged, the bill provides for some limited exceptions to the prohibition, including an exemption to cover legitimate law enforcement activities.

No doubt in the days and years ahead we will continue to make much progress in developing new technologies. While I am fully supportive of innovation and growth, I remain committed to protecting those principles which are so central to America. The legislation which is the subject of the hearing today strikes the necessary balance to ensure that our privacy will not be lost as we move ahead.

I look forward to the testimony of the witnesses and hope that we can move ahead on this legislation this year.

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First let me say that it is a real pleasure to be here this

morning and to join the Senate Subcommittee on Technology and the Law

and the House Subcommittee on Courts, Civil Liberties and the

Administration of Justice.

I thank Senator Leahy and Congressman

Kastenmeier for allowing me the privilege of joining them here in order

to receive the testimony of the witnesses in today's hearing.

The idea of legislation to protect the privacy rights on an

individual's video club records or library records first arose during

the hearings on the Bork nomination.

It was then that I learned that a

local reporter had decided to publish in a newspaper known as the "City

Paper" the video rental record of Judge Bork

as though that would be

some great and dazzling story or delightfully entertaining piece or "investigative journalism" at its worse or simply "Creative

Reporting About People," with the acronym of CRAP!

The fact was, and still is, is that it is nobody's business what

videos are rented by Judge Bork or anyone else.

It does not matter

whether you are a nominee for the Supreme Court or the City Council or

the School Board.

As Judge Bork so articulately pointed out during his

hearings, the Congress of the United States does have the power to

legislate privacy rights if it wishes.

Thus we are about that business

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