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Mr. KASTENMEIER. I would like to now yield to the gentleman from California, Mr. Moorhead.

Mr. MOORHEAD. Well, thank you, Mr. Chairman.

The legislation before us today, is H.R. 2316 and H.R. 4947 stems from the incident last summer when a newspaper reporter found out from a video store what video films Judge Bork rented and published a story about his preferences.

The immediate reaction to the Bork episode was a strong bipartisan response. Both the Democrats and Republicans deciding upon Judge Bork's judgeship became outraged and called for legislation. This bill is the result with Senators Leahy and Simon joined by Senator Grassley, sponsoring on the Senate side, Chairman Kastenmeier and our colleague, Mr. McCandless, sponsoring on the House side.

Mr. Leahy and Chairman Kastenmeier are to be commended for their long-standing commitment to privacy interests. By the same token I would like to commend our colleague, Mr. McCandless for his initiative on this legislation...

The legislation before us today covers libraries and direct marketeers as well as retail stores. The legislation does two basic things: It restricts what a library can say to anyone, including law enforcement personnel, about a library patron. This covers all library material and not just video. The Government has to fulfill a detailed subpoena requirement before it can get access to library records. On this part of the bill, I think it is important that we obtain the views of the law enforcement community.

The bill restricts video sellers through retail stores and through the mail. This approach goes far beyond fixing the Bork problem and attempts to regulate the mail industry.

The video store owners tend to support this legislation. The direct marketeers oppose its coverage of direct-marketing. Their position is that they have complied with the privacy requirements for many years and there is no record to support legislative action against them. Having said that, I look forward to the testimony of all the witnesses today and I think it will be a very interesting hearing.

[The statement of Mr. Moorhead follows:

STATEMENT OF THE HONORABLE CARLOS J. MOORHEAD

ON H.R. 4947

"VIDEO AND LIBRARY PRIVACY PROTECTION ACT OF 1988"

AUGUST 3, 1988

The legislation before us today, S.2361 and H.R. 4947, stems

from the incident last summer when a newspaper reporter found out

from a video store what video films Judge Bork had rented and published a story about his preferences.

The immediate reaction to the Bork episode was a strong bipartisan response. Both the Democrats and the Republicans deciding upon Judge Bork's judgeship became outraged and called

for legislation.

This bill is the result with Senators Leahy and

Simon joined by Senator Grassley sponsoring on the Senate side and Chairman Kastenmeier and our colleague Mr. McCandless

sponsoring on the House side.

Senator Leahy and Chairman

Kastenmeier are to be commended for their longstanding commitment to privacy interests. By the same token, I would like to commend our colleague Mr. McCandless for his initiative on this issue.

This legislation before us today covers libraries and direct

marketers as well as retail stores.

This legislation does two

basic things:

2

1. It restricts what a library can say to anyone including law enforcement personnel about a library patron. This covers all library material and not just video. The government has to

fulfill a detailed subpoena requirement before it can get access to library records. On this part of the bill I think it is

important that we obtain the views of the law enforcement

community.

2.

The bill restricts video sellers both through retail

stores and through the mail.

This approach goes far beyond

fixing the Bork problem and attempts to regulate the mail

industry.

The video store owners tend to support this legislation. The direct marketers oppose its coverage of direct marketing.

Their position is that they have complied with privacy

requirements for many years and there is no record to support

legislative action against them.

While I agree that the

legislation is well intended, I think it is important that we

proceed carefully to insure that we do not end up legislating in

an area where in fact there are no problems.

Mr. KASTENMEIER. I thank the gentleman from California. I am very pleased to call as our first witness today our colleague, Al McCandless. It was Congressman McCandless who introduced the first legislation in either body to protect the privacy of video store

users.

I am pleased we were able to join together to cosponsor H.R. 4947. Congressman McCandless, you are a strong supporter of the privacy rights this bill provides, and we are looking forward to hearing your remarks.

TESTIMONY OF THE HONORABLE ALFRED A. (AL) McCANDLESS,

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALI-
FORNIA
Mr. McCANDLESS. Thank you, Mr. Chairman.

Members of the Committee, I appreciate the opportunity to appear before you today. In particular, I want to thank you, Chairman Kastenmeier, for your commitment to individual privacy. Including library services in the legislation was your initiative on the House side, and I believe this makes for a better bill.

At the heart of this legislation is the notion that all citizens have a right to privacy-the right to be left alone-from their Government and from their neighbor.

A glance at the list of Members of Congress sponsoring this legislation indicates that this notion transcends party lines and political philosophy.

There's a gut feeling that people ought to be able to read books and watch films without the whole world knowing. Books and films are the intellectual vitamins that fuel the growth of individual thought. The whole process of intellectual growth is one of privacy-of quiet, and reflection. This intimate process should be protected from the disruptive intrusion of a roving public eye.

What we're trying to protect with this legislation are usage records of content-based materials-books, records, videos, and the like.

Under our Constitution, content-based materials receive special protection. Only in the most extreme circumstances can the Government prohibit their distribution. Yet to the extent that receivers of the information are threatened with a loss of anonymity, the Constitutional right to distribute materials is licensed. The legislation you are considering, therefore, compliments the First Amendment.

Finally, there is an element of common decency in this legislation. It is really nobody else's business what people read, watch, or listen to.

We all felt a sense of outrage when Judge Bork's video list was revealed in print. His privacy was invaded. But what the incident also demonstrated was the tremendous storage and retrieval capabilities of even the smallest of today's businesses.

Currently, only a chain-link fence protects the privacy of consumers of content-based materials. That chain-link fence is the policy and discretion of an individual merchant or librarian. I ask the committees to build a brick wall-a Federal privacy rightaround the individual: Pass H.R. 4947 and S. 2361.

90-845 0 - 89 - 2

Thank you for this opportunity to share my thoughts on the subject, and I would be happy to answer any questions you might have.

[The statement of Mr. McCandless follows:

STATEMENT OF THE HONORABLE AL MCCANDLESS

BEFORE A JOINT HEARING OF THE HOUSE SUBCOMMITTEE ON

COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE

AND THE SENATE SUBCOMMITTEE ON TECHNOLOGY AND THE LAW

CONSIDERING THE "VIDEO AND LIBRARY PRIVACY PROTECTION ACT OF 1988,"

H.R. 4947 AND S. 2361

AUGUST 3, 1988

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