VIDEO AND LIBRARY PRIVACY PROTECTION

ACT OF 1988

JOINT HEi

BEFORE THE

SUBCOMMITTEE ON COURTS,

AND THE ADMINISTRATION

OF THE . .

HOUSE COMMITTEE ON THE JUDICIAKY

AND THE

SUBCOMMITTEE ON TECHNOLOGY AND THE LAW

OF THE

SENATE COMMITTEE ON THE JUDICIAKY

ONE HUNDREDTH CONGRESS

SECOND SESSION

ON

H.R. 4947 and S. 2361

VIDEO AND LIBRARY PRIVACY PROTECTION ACT OF 1988

AUGUST 3, 1988

Serial No. 110

(House Committee on the Judiciary)

Serial No. J-100-90

(Senate Committee on the Judiciary)

Printed for the use of the Committees on the Judiciary

U-S. GOVERNMENT PRINTING OFFICE

WASHINGTON ! 1989

For sale by the Superintendent of Documents, Congressional Sales Office

IS Government Printing Office. Washington. DC 20402
/

HOUSE COMMITTEE ON THE JUDICIARY

PETER W. RODINO, JR., New Jersey, Chairman

JACK BROOKS, Texas HAMILTON FISH, JR.. New York

ROBERT W. KASTENMEIER, Wisconsin CARLOS J. MOORHEAD, California

DON EDWARDS, California HENRY J. HYDE, Illinois

JOHN CONYERS, JR., Michigan DAN LUNGREN, California

ROMANO L. MAZZOLI, Kentucky F. JAMES SENSENBRENNER. JR.,

WILLIAM J. HUGHES, New Jersey Wisconsin

MIKE SYNAR, Oklahoma BILL McCOLLUM, Florida

PATRICIA SCHROEDER, Colorado GEORGE W. GEKAS, Pennsylvania

DAN GLICKMAN. Kansas MICHAEL DEWINE, Ohio

BARNEY FRANK, Massachusetts WILLIAM E. DANNEMEYER, California

GEO. W. CROCKETT, JR., Michigan PATRICK L. SWINDALL, Georgia

CHARLES E. SCHUMER, New York HOWARD COBLE, North Carolina

BRUCE A. MORRISON, Connecticut D. FRENCH SLAUGHTER, JR., Virginia

EDWARD F. FEIGHAN, Ohio LAMAR S. SMITH, Texas

LAWRENCE J. SMITH, Florida

HOWARD L. BERMAN, California

RICK BOUCHER, Virginia

HARLEY O. STAGGERS, JR., West Virginia

JOHN BRYANT, Texas

BENJAMIN L. CARDIN, Maryland

M. ELAINE MIELKE, General Counsel

ARTHUR P. ENDRES, JR., Staff Director

ALAN F. COFFEY, JR., Associate Counsel

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE

ROBERT W. KASTENMEIER, Wisconsin, Chairman

MIKE SYNAR, Oklahoma CARLOS J. MOORHEAD, California

PATRICIA SCHROEDER, Colorado HENRY J. HYDE, Illinois

GEO. W. CROCKETT JR., Michigan DAN LUNGREN, California

BRUCE A. MORRISON. Connecticut MICHAEL DEWINE, Pennsylvania

HOWARD L. BERMAN, California HOWARD COBLE, North Carolina

RICK BOUCHER, Virginia D. FRENCH SLAUGHTER JR., Virginia

JOHN BRYANT, Texas

BENJAMIN L CARDIN, Maryland

MICHAEL J. REMINGTON. Chief Counsel

DAVID W. BEIER, Counsel

VIRGINIA E. SLOAN, Counsel

SUSAN L. COSKEY, Counsel

THOMAS E. MOONEY, Associate Counsel

JOSEPH V. WOLFE, Associate Counsel

<n>

_^ A -"> TJ / 11
I

>

SENATE COMMITTEE ON THE JUDICIARY

JOSEPH R. BIDEN, JR., Delaware, Chairman

EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina

ROBERT C. BYRD, West Virginia ORRIN G. HATCH, Utah

HOWARD M. METZENBAUM, Ohio ALAN K. SIMPSON, Wyoming

DENNIS DECONCINI, Arizona CHARLES E. GRASSLEY, Iowa

PATRICK J. LEAHY, Vermont ARLEN SPECTER, Pennsylvania

HOWELL HEFLIN, Alabama GORDON J. HUMPHREY, New Hampshire

PAUL SIMON, Illinois

MARK H. GITENOTEIN, Chief Counsel

DIANA HUFFMAN, Staff Director

DENNIS W. SHEDD, Minority Chief Counsel

SUBCOMMITTEE ON TECHNOLOGY AND THE LAW

PATRICK J. LEAHY, Vermont, Chairman

DENNIS DECONCINI, Arizona GORDON J. HUMPHREY, New Hampshire

ANN M. HARKINS, Chief Counsel

GEORGE C. SMITH, Minority Chief Counsel

urn

CONTENTS

TEXT OF BILLS

P«g*

H.R. 4947 2

S. 2361 9

OPENING STATEMENTS

The Honorable Robert W. Kastenmeier, a Representative in Congress from

the State of Wisconsin; Chairman, Subcommittee on Courts, Civil Liberties

and the Administration of Justice 20

The Honorable Patrick J. Leahy, a Senator from the State of Vermont;

Chairman, Senate Subcommittee on Technology and the Law 18

The Honorable Carlos J. Moorhead, a Representative in Congress from the

State of California 25

WITNESSES

The Honorable Alfred A. (AD McCandless, a Representative in Congress from

the State of California 27

Prepared statement 28

Judith F. Krug, Director, Office for Intellectual Freedom, American Library

Association, Chicago, IL 34

Prepared statement 37

Janlori Goldman, Esq., Staff Attorney, Project on Privacy and Technology,

American Civil Liberties Union, Washington, DC 34

Prepared statement 37

Vans Stevenson, Director of Public Relations, Erol's, Inc., Springfield, VA; on

behalf of the Video Software Dealers Association, Marlton, NJ 34

Prepared statement 78

Richard A. Barton, Senior Vice President, Direct Marketing Association,

Washington, DC 34

Prepared statement with attachment 90

ADDITIONAL STATEMENTS

Statement of the Honorable Paul Simon, a Senator from the State of Illinois;

Chairman, Senate Subcommittee on the Constitution 131

Statement of the Honorable Alan K. Simpson, a Senator from the State of

Wyoming 133

ADDITIONAL MATERIALS

Invitation to testify from the Honorable Patrick J. Leahy and the Honorable

Peter W. Rodino, Jr., Chairman, Committee on the Judiciary, U.S. House of

Representatives, to the Honorable William S. Sessions, Director, Federal

Bureau of Investigation, July 26, 1988; letter of response from Mr. Sessions

to Mr. Rodino, August 2, 1988 136, 138

Letter from C. James Schmidt, Chair, Intellectual Freedom Committee, Office

for Intellectual Freedom, American Library Association, Chicago, IL; to the

Honorable Robert W. Kastenmeier, August 25, 1988 139

Letter from Judith F. Krug to the Honorable Robert W. Kastenmeier,

September 23, 1988 140
VI

Pag.

Letter from David R. Bender, Ph.D., Executive Director, Special Libraries

Association, Washington, DC, to the Honorable Peter W. Rodino, Jr.,

September 26, 1988 142

Letter from John H. Buchanan, Jr., Chairman, and Arthur J. Kropp, President, People for the American Way, Washington, DC, to the Honorable

Robert W. Kastenmeier, October 3, 1988 143

Letter from Duane E. Webster, Executive Director, Association of Research

Libraries, Washington, DC, to the Honorable Robert W. Kastenmeier,

September 26, 1988 145

Letter from the Honorable Robert W. Kastenmeier and the Honorable Don

Edwards, Chairman, Subcommittee on Civil and Constitutional Rights, to

the Honorable Louis Stokes, Chairman, Permanent Select Committee on

Intelligence, September 22, 1988 146

Letter from Thomas M. Boyd, Acting Assistant Attorney General, Office of

Legislative Affairs, U.S. Department of Justice, to the Honorable Robert W.

Kastenmeier, September 27, 1988 148
VIDEO AND LIBRARY PRIVACY PROTECTION

ACT OF 1988

WEDNESDAY, AUGUST 3, 1988

U.S. HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON

COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF

JUSTICE, COMMITTEE ON THE JUDICIARY, AND U.S.

SENATE, SUBCOMMITTEE ON TECHNOLOGY AND THE LAW,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittees met, pursuant to notice, at 9:40 a.m., in room

2237, Rayburn House Office Building, Hon. Robert W. Kastenmeier

(chairman of the Subcommittee on Courts, Civil Liberties, and the

Administration of Justice) presiding.

Present (House): Representatives Kastenmeier, Berman, Cardin,

Moorhead, DeWine, Coble, and Slaughter.

Present (Senate): Senators Leahy and Simon.

Staff present (House): Michael J. Remington, chief counsel; Virginia E. Sloan, counsel; David W. Beier, counsel; Joseph V. Wolfe,

associate counsel; and Judith W. Krivit, clerk.

Staff present (Senate): Ann M. Harkins, chief counsel; Marc S.

Rotenberg, counsel; Susan P. Kaplan, counsel; and Jill D. Friedman, clerk.

Mr. KASTENMEIER. The meeting will come to order.

[Copies of H.R. 4947 and S. 2361 follow:]

(l)
100TH CONGRESS

2D SESSION H. R. 4947

To amend title 18, United States Code, to preserve personal privacy of individuals

with respect to certain library use and use of services involving the rental or

purchase of video tapes, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JUNE 29, 1988

Mr. KASTBNMEIER (for himself and Mr. MCCANDLESS) introduced the following

bill; which was referred to the Committee on the Judiciary

A BILL

To amend title 18, United States Code, to preserve persona'

privacy of individuals with respect to certain library use xnd

use of services involving the rental or purchase of video

tapes, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the "Video and Library

5 Privacy Protection Act of 1988".

6 SEC. 2. CHAPTER 121 AMENDMENT.

7 (a) IN GENEBAL.•Chapter 121 of title 18, United

8 States Code, is amended•
3

2

1 (1) by redesignating section 2710 as section 2711;

2 and

3 (2) by inserting after section 2709 the following:

4 "§ 2710. Wrongful disclosure of information relating to li5 brary use or video tape rental or sale

6 "(a) PROHIBITIONS.•Except as provided in subsection

7 (b), it shall be unlawful for a video service provider or library

8 knowingly•

9 "(1) to disclose to any other person or entity any

10 personally identifiable information about any user of

11 covered services; or

12 "(2) to retain in a record any such information

13 more than one year after•

14 "(A) that information is no longer necessary

15 for the purposes for which it was collected; and

16 "(B) there are no pending requests or court

17 orders for disclosure under this section.

18 "(b) EXCEPTIONS.•It is not a violation of sub19 section (a) of this section to disclose information about an

20 individual•

21 "(1) to that individual;

22 "(2) with that individual's consent under the cir23 cumstances described in subsection (c) of this section;

24 "(3) to a law enforcement agency pursuant to an

25 order under subsection (d) of this section; or
3

1 "(4) when necessary for a legitimate business

2 purpose.

3 For the purposes of this subsection, engaging in the conduct

4 prohibited by subsection (a) is not in itself a legitimate busi5 ness purpose.

6 "(c) RBQUIBEMENT8 FOB CONSENT EXCEPTION.•

7 "(1) IN OENEBAL.•Except as provided in para8 graph (2), the consent required for the exception under

9 subsection (b)(2) is the prior written consent of the

10 user•

11 "(A) specifying what information will be dis12 closed and who the specific recipient of that dis13 closure will be; and

14 "(B) given under the circumstances in which

15 the user understands that the user may prohibit

16 that disclosure without being refused services or

17 suffering other discrimination.

18 "(2) ALTEBNATIVE CONSENT.•In the case of a

19 disclosure limited to the name and address of the user,

20 that does not, directly or indirectly, reveal the category

21 of service, or the title, description, or subject matter of

22 service used, it is also sufficient consent for the pur23 poses of the exception under subsection (b)(2) that•

24 "(A) the provider has given the user an op25 portunity to prohibit such disclosure;
4

1 "(B) such opportunity is given•

2 "(i) in a writing which clearly and con3 spicuously specifies what information will be

4 disclosed; and

5 "(ii) under the circumstances described

6 in paragraph (1)(B); and

7 "(C) the user may exercise that opportunity

8 by making an appropriate mark on such writing.

9 "(d) REQUIREMENTS FOB COUBT OBDEE FOB LAW

10 ENFOBCEMENT EXCEPTION.•

11 "(1) IN GENEBAL.•A court may order disclosure

12 of personally identifiable information about a user of

13 covered services to a Federal law enforcement agency

14 or a State law enforcement agency authorized by State

15 statute to seek such disclosure, if•

16 "(A) the user is given notice and afforded an

17 opportunity to appear and contest such order; and

18 "(B) the law enforcement agency makes the

19 showing describedin paragraph (2).

20 "(2) WHAT THE AGENCY MUST SHOW.•In a

21 court proceeding to issue an order under this subsec22 tion the law enforcement agency must show•

23 "(A) by clear and convincing evidence that

24 the user has engaged in criminal activity;
5

1 "(B) that the information sought would be

2 highly probative in a criminal proceeding relating

3 to that activity;

4 "(C) that other specifically named and less

5 intrusive investigative procedures have been tried

6 and failed, and the particular details of that at7 tempt and failure, or why the peculiar circum8 stances of this case make it reasonably appear

9 that other less intrusive investigative procedures

10 are unlikely to succeed if tried or are too danger11 ous to try; and

12 "(D) why, in the particular and individual

13 circumstances of this case, the value of the infor14 mation sought outweighs the competing privacy

15 interests.

16 "(e) CIVIL REMEDY.•Any person or entity (including a

17 governmental entity) that violates subsection (a) shall be

18 liable to any person aggrieved by that violation for•

19 "(1) such equitable and declaratory relief as may

20 be appropriate;

21 "(2) actual damages, but not less than the liqui22 dated amount of $2,500;

23 "(3) punitive damages in appropriate cases; and

24 "(4) reasonable attorneys' fees and other litigation

25 expenses reasonably incurred.
6

1 "(0 DEFINITIONS OF COVERED ENTITIES AND SEBV2 ICES.•For purposes of this section•

3 "(1) the term 'video service provider or library'

4 means•

5 "(A) any publicly owned library open to the

6 general public;

7 "(B) any library in a primary, secondary, or

8 post secondary education institution•

9 "(i) that is a public institution; or

10 "(ii) any part of which receives Federal

11 financial assistance;

12 "(C) any person or other entity engaging in

13 a business that includes the renting or selling of

14 prerecorded video tapes or similar audiovisual

15 materials that•

16 "(i) operates in or affects interstate or

17 foreign commerce; or

18 "(ii) is supplied with video tapes to rent

19 or sell through distributors that operate in

20 interstate or foreign commerce;

21 "(D) any person or other entity to whom a

22 disclosure is made under subsection (b)(4), but

23 only with respect to the information contained in

24 that disclosure; or
8

7

1 "(E) any person acting as an agent of an

2 entity described in subparagraphs (A) through (D),

3 but only with respect to information obtained from

4 such entity; and

5 "(2) the term 'covered services' means•

6 "(A) with respect to a library, all the serv7 ices of the library; and

8 "(B) with respect to a provider of prerecord9 ed video tapes or similar audiovisual materials,

10 those services involving or incident to providing

11 such tapes or materials.

12 "(g) PREEMPTION.•The section preempts only those

13 provisions of State or local law that require disclosure which

14 this section prohibits.".

15 (b) CLERICAL AMENDMENT.•The table of sections at

16 the beginning of chapter 121 of title 18, United States Code,

17 is amended•

18 (1) in the item relating to section 2710, by strik19 ing out "2710" and inserting "2711" in lieu thereof;

20 and

21 (2) by inserting after the item relating to section

22 2709 the following new item:

"2710. Wrongful disclosure of information relating to library use or video tape

rental or sale.".
100TH CONGRESS

2D SESSION S. 2361

To amend title 18, United States Code, to preserve personal privacy with respect

to the rental, purchase, or delivery of video tapes or similar audio visual

materials and the use of library materials or services.

IN THE SENATE OF THE UNITED STATES

MAY 10 (legislative day, MAY 9), 1988

Mr. LEAHY (for himself, Mr. OBASRI BY, Mr. SIMON, and Mr. SIMPSON) introduced the following bill; which was read twice and referred to the Committee

on the Judiciary

A BILL

To amend title 18, United States Code, to preserve personal

privacy with respect to the rental, purchase, or delivery of

video tapes or similar audio visual materials and the use of

library materials or services.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of A merica in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the "Video and Library

5 Privacy Protection Act of 1988".

6 SEC. 2. CHAPTER 121 AMENDMENT.

7 (a) IN GENERAL.•Chapter 121 of title 18, United

8 States Code, is amended•
10

2

1 (1) by redesignating section 2710 as section 2711;

2 and

3 (2) by inserting after section 2709 the following:

4 "§ 2710. Wrongful disclosure of video tape rental or sale

5 records and library records

6 "(a) DEFINITIONS.•For purposes of this section•

7 "(1) the term 'patron' means any individual who

8 requests or receives•

9 "(A) services within a library; or

10 "(B) books or other materials on loan from a

11 library;

12 "(2) the term 'consumer' means any renter, pur13 chaser, or subscriber of goods or services from a video

14 tape service provider;

15 "(3) the term 'library' means an institution which

16 operates as a public library or serves as a library for

17 any university, school, or college;

18 "(4) the term 'ordinary course of business' means

19 only debt collection activities and the transfer of

20 ownership;

21 "(5) the term 'personally identifiable information'

22 includes information which identifies a person as

23 having requested or obtained specific materials or serv24 ices from a video tape service provider or library; and
11

3

1 "(6) the term 'video tape service provider' means

2 any person, engaged in the business of rental, sale, or

3 delivery of pre-recorded video cassette tapes or similar

4 audio visual materials.

5 "(b) VIDEO TAPE RENTAL AND SALE RECORDS.•(1)

6 A video tape service provider who knowingly discloses, to

7 any person, personally identifiable information concerning

8 any consumer of such provider shall be liable to the ag9 grieved person for the relief provided in subsection (d).

10 "(2) A video tape service provider may disclose person11 ally identifiable information concerning any consumer•

12 "(A) to the consumer;

13 "(B) to any person with the informed, written

14 consent of the consumer given at the time the disclo15 sure is sought;

16 "(C) to a law enforcement agency pursuant to a

17 court order authorizing such disclosure if•

18 "(i) the consumer is given reasonable notice,

19 by the law enforcement agency, of the court pro20 ceeding relevant to the issuance of the court order

21 and is afforded the opportunity to appear and con22 test the claim of the law enforcement agency; and

23 "(ii) such law enforcement agency offers

24 clear and convincing evidence that the subject of

25 the information is reasonably suspected of engag-
12

4

1 ing in criminal activity and the information sought

2 is highly probative and material, to the case;

3 "(D) to any person if the disclosure is solely of

4 the names and addresses of consumers and if•

5 "(i) the video tape service provider has pro6 vided the consumer with the opportunity, in a

7 writing separate from any rental, sales, or sub8 scription agreement, to prohibit such disclosure;

9 and

10 "(ii) the disclosure does not reveal, directly

11 or indirectly, the title, description, or subject

12 matter of any video tapes or other audio visual

13 material;

14 "(E) to any person if the disclosure is incident to

15 the ordinary course of business of the video tape serv16 ice provider; or

17 "(F) pursuant to a court order, in a civil proceed18 ing upon a showing of compelling need for the informa19 tion that cannot be accommodated by any other means,

20 if•

21 "(i) the consumer is given reasonable notice,

22 by the person seeking the disclosure, of the court

23 proceeding relevant to the issuance of the court

24 order; and
13

5

1 "(ii) the consumer is afforded the opportunity

2 to appear and contest the claim of the person

3 seeking the disclosure.

4 If an order is granted pursuant to subparagraph (C) or (F),

5 the court shall impose appropriate safeguards against unau6 thorized disclosure.

7 "(c) LIBRARY RECORDS.•(1) Any library which know8 ingly discloses, to any person, personally identifiable informa9 tion concerning any patron of such institution shall be liable

10 to the aggrieved person for the relief provided in subsection

11 (d).

12 "(2) A library may disclose personally identifiable infor13 mation concerning any patron•

14 "(A) to the patron;

15 "(B) to any person with the informed written con16 sent of the patron given at the time the disclosure is

17 sought;

18 "(C) to a law enforcement agency pursuant to a

19 court order authorizing such disclosure if•

20 . "(i) the patron is given reasonable notice, by

21 the law enforcement agency, of the court proceed22 ing relevant to the issuance of the court order and

23 is afforded the opportunity to appear and contest

24 the claim of the law enforcement agency; and
14

6

1 "(ii) such law enforcement agency offers

2 clear and convincing evidence that the subject of

3 the information is reasonably suspected of engag4 ing in criminal activity and that the information

5 sought is highly probative and material to the

6 case;

7 "(D) to any person if the disclosure is solely of

8 the names and addresses of patrons and if•

9 "(i) the library has provided the patron with

10 a written statement which affords the patron the

11 opportunity to prohibit such disclosure; and

12 "(ii) the disclosure does not reveal, directly

13 or indirectly, the title, description, or subject

14 matter of any library materials borrowed or serv15 ices utilized by the patron;

16 "(E) to any authorized person if the disclosure is

17 necessary for the retrieval of overdue library materials

18 or the recoupment of compensation for damaged or lost

19 library materials; or

20 "(F) pursuant to a court order, in a civil proceed21 ing upon a showing of compelling need for the informa22 tion that cannot be accommodated by any other means,

23 if•
15

7

1 "(i) the patron is given reasonable notice, by the

2 person seeking the disclosure, of the court proceeding

3 relevant to the issuance of the court order; and

4 "(ii) the patron is afforded the opportunity to

5 appear and contest the claim of the person seeking the

6 disclosure.

7 If an order is granted pursuant to subparagraph (C) or (F),

8 the court shall impose appropriate safeguards against unau9 thorized disclosure.

10 "(d) CIVIL ACTION.•(1) Any person aggrieved by any

11 act of a person in violation of this section may bring a civil

12 action in a United States district court.

18 "(2) The court may award•

14 "(A) actual damages but not less than liquidated

15 damages in an amount of $2,500;

16 "(B) punitive damages;

17 "(C) reasonable attorneys' fees and other litiga18 tion costs reasonably incurred; and

19 "(D) such other preliminary and equitable relief as

20 the court determines to be appropriate.

21 "(3) No action may be brought under this subsection

22 unless such action is begun within 2 years from the date of

23 the act complained of or the date of discovery.

24 "(4) No liability shall result from lawful disclosure per25 mitted by this section.
16

8

1 "(e) Personally identifiable information obtained in any

2 manner other than as provided in this section shall not be

3 received in evidence in any trial, hearing, arbitration, or

4 other proceeding in or before any court, grand jury, depart5 ment, officer, agency, regulatory body, legislative committee,

6 or other authority of the United States, a State, or a political

7 subdivision of a State.

8 "(0 DESTRUCTION OP OLD RECORDS.•A person sub9 ject to this section shall destroy personally identifiable infor10 mation as soon as practicable, but no later than one year

11 from the date the information is no longer necessary for the

12 purpose for which it was collected and there are no pending

13 requests or orders for access to such information under sub14 sections (b)(2) or (c)(2) or pursuant to a court order.

15 "(g) SELECTION OF A FORUM.•Nothing in this section

16 shall limit rights of consumers or patrons otherwise provided

17 under State or local law. A Federal court shall, in accord18 ance with section 1738 of title 28, United States Code, give

19 preclusive effect to the decision of any State or local court or

20 agency in an action brought by a consumer or patron under a

21 State or local law similar to this section. A decision of a

22 Federal court under this section shall preclude any action

23 under a State or local law similar to this section.".
17

9

1 (b) CLERICAL AMENDMENT.•The table of sections at

2 the beginning of chapter 121 of title 18, United States Code,

3 is amended•

4 (1) in the item relating to section 2710, by strik5 ing out "2710" and inserting "2711" in lieu thereof;

6 and

7 (2) by inserting after the item relating to section

8 2709 the following new item:

"2710. Wrongful disclosure of video tape rental or sale records and library

records.".
18

Mr. KASTENMEIER. Today I am pleased that the Subcommittee on

Courts, Civil Liberties, and the Administration of Justice joins with

the Senate Judiciary Committee Subcommittee on Technology and

the Law to hold a hearing on H.R. 4947 and S. 2361, bills to protect

the privacy of users of video and library services.

Without objection, by unanimous consent, this meeting may be

covered in whole or part by television and/or radio broadcast and/

or still photography pursuant to Rule 5 of the Committee rules.

Before making any opening statement, I would like to turn to the

distinguished Chairman of the Subcommittee on Technology and

the Law, Senator Pat Leahy, for his opening remarks.

Mr. LEAHY. Mr. Chairman, I appreciate that and the courtesy of

you letting me go first.

As I mentioned, we have a vote that is going to occur very quickly in the Senate and I will cut out for a few minutes and do that

and come back.

I am pleased to be here for this joint hearing of the Senate Judiciary Committee's Subcommittee on Technology and the Law and

the House Judiciary Committee's Subcommittee on Courts, Civil

Liberties, and the Administration of Justice.

I want to compliment you, sir, for the leadership you have

shown, not only in this subject but in so many that I have had the

honor of working with you on over the past several years on every

area from privacy to high technology issues.

It has been a pleasure and it is an honor for me to be able to

come over here and join you in what's a much nicer hearing room

than we have over on the other side. There's better lighting.

Today, we are considering the Video and Library Privacy Protection Act. That is legislation that on the Senate side, I introduced

with Senators Simon, Simpson and Grassley. And you, Mr. Chairman, and Congressman McCandless introduced companion legislation here.

Judge Bork's confirmation hearings last year really provided the

forum for a national civics lesson. From Vermont to California,

Americans exchanged their views on our system of government. No

lesson from those hearings affected us more personally or deeply

than the debate on the right to privacy.

Vermonters certainly let me know where they stood when reporters obtained a list of the movies that Judge Bork and his

family rented and they published them in a Washington newspaper. It was disturbing to see that personal information can be fair

game for reporters or lawyers or nosy neighbors.

Most of us rent movies at video stores and we check out books

from our community libraries. These activities generate an enormous report of personal activity that, if it is going to be disclosed,

makes it very, very difficult for a person to protect his or her privacy.

It really isn't anybody's business what books or what videos

somebody gets. It doesn't make any difference if somebody is up for

confirmation as a Supreme Court Justice or they are running the

local grocery store. It is not your business. It is not my business. It

is not anybody else's business, whether they want to watch Disney

or they want to watch something of an entirely different nature. It

really is not our business.
19

And if we are going to tell people, especially people who want to

be in any form of public life, well, if you do, we are going to go all

the way back and find out what you checked out at your public library, what you took out on videos or what you watch at night on

television programs, then we are in a sorry state.

What a people's philosophy is, whether they are honest, whether

they have integrity, those are valid questions for public office.

Whether you want to watch a particular T.V. program or not isn't

anybody else's business and this law is going to make sure that it

stays nobody's else's business.

In 1986, I worked with the Chairman, with Congressman Kastenmeier, in landmark privacy legislation. That was the Electronic

Communications Privacy Act. That protects communications from

unlawful interception. We seem to be following along that line

here. The Video and Library Privacy Protection Act would protect

personally identifiable information from unlawful disclosure.

It prohibits the disclosure of library borrowing records and it will

provide damages awards when information is unlawfully disclosed.

I am encouraged by the bipartisan support for this, and, Mr. Chairman, again I can't compliment you enough for holding this hearing.

I am encouraged by the broad bipartisan support for the bill and

will work hard for its enactment before the end of the Congress.

Mr. KASTENMEIER. We thank the distinguished Senator for his

opening remarks and it is indeed an honor to chair this committee

with him. Needless to say, I am an admirer of Pat Leahy and have

worked with him on many things, as he pointed out, such as the

Electronic Communications Privacy Act and many other pieces of

legislation which have come to fruition.

I have long been concerned about the increasing number and

types of intrusions into the privacy of American citizens•by both

private individuals and the Government. Over the years, this subcommittee has held both legislative and oversight hearings on this

issue, and as a result, we have helped lead the fight to curb these

troublesome invasions of privacy.

The Senate bill and House bill are another critical step along the

road to meeting a particular problem. These bills follow in the footsteps of other privacy legislation we have considered and the important 1977 report of the Privacy Commission. These bills are an

effort to keep up to date with changing technology and changing

social patterns with respect to the use of materials which ought to

be clearly private.

In any event, I am hopeful that we will be able to move these

bills forward. I think our goal should be in enactment this year if

at all possible. I would think there would be widespread support for

this form of initiative, and I am looking forward to these hearings.

[The statement of Mr. Kastenmeier follows:]
20

OPENING STATEMENT

THE HONORABLE ROBERT W. KASTENMEIER

VIDEO AND LIBRARY PRIVACY PROTECTION ACT OF 1988

AUGUST 3, 1988

TODAY I AM PLEASED THAT THE SUBCOMMITTEE ON COURTS, CIVIL

LIBERTIES AND THE ADMINISTRATION OF JUSTICE JOINS WITH THE

SENATE JUDICIARY COMMITTEE SUBCOMMITTEE ON TECHNOLOGY AND THE LAW

TO HOLD A HEARING ON H.R. 4947 AND S. 2361, BILLS TO PROTECT THE

PRIVACY OF USERS OF VIDEO AND LIBRARY SERVICES.

I HAVE LONG BEEN CONCERNED ABOUT THE INCREASING NUMBER AND

TYPES OF INTRUSIONS INTO THE PRIVACY OF AMERICAN CITIZENS • BY

BOTH PRIVATE INDIVIDUALS AND THE GOVERNMENT. OVER THE YEARS,

THIS SUBCOMMITTEE HAS HELD BOTH LEGISLATIVE AND OVERSIGHT

HEARINGS ON THIS ISSUE, AND AS A RESULT, WE HAVE HELPED LEAD THE

FIGHT TO CURB THESE TROUBLESOME INVASIONS OF PRIVACY.

BEGINNING IN 1970 WITH THE PASSAGE OF THE FAIR CREDIT

REPORTING ACT, AND ENDING LAST CONGRESS WITH THE ELECTRONIC

COMMUNICATIONS PRIVACY ACT, THE CONGRESS HAS SHOWN ITS CONCERN

OVER THE EXPANDING COMPUTERIZATION OF OUR SOCIETY, AND OVER THE

PROTECTION OF EACH AND EVERY INDIVIDUAL'S "RIGHT TO BE LET

ALONE." JUSTICE BRANDEIS'S FAMOUS WORDS CONTINUE TO RING TRUE,
21

AND THEY ARE THE PREMISE OF THE LEGISLATION HE CONSIDER TODAY.

I AM ESPECIALLY PLEASED THAT IN OUR HEARING TODAY, WE ARE

JOINED BY THE DISTINGUISHED GENTLEMAN FROM VERMONT, SENATOR PAT

LEAHY, SINCE HE WORKED CLOSELY WITH HIM AND WITH HIS COLLEAGUES

IN ACHIEVING PASSAGE OF THE ELECTRONIC COMMUNICATIONS PRIVACY

ACT. ECPA HAS AN IMPORTANT STEP ALONG THE ROAD TO PROTECTING THE

PRIVACY OF OUR EVERYDAY LIVES.

H.R. 4947 IS ANOTHER CRITICAL STEP ALONG THAT ROAD, ONE THAT

I AM PLEASED TO CO-SPONSOR WITH OUR FIRST WITNESS TODAY, OUR

COLLEAGUE, REPRESENTATIVE AL MC CANDLESS. H.R. 4947 FOLLOWS IN

THE FOOTSTEPS OF OTHER HISTORIC PRIVACY LEGISLATION AND OF THE

IMPORTANT 1977 REPORT OF THE PRIVACY COMMISSION, BY PROHIBITING

THE DISCLOSURE OF PERSONAL INFORMATION WITHOUT THE INFORMED AND

VOLUNTARY CONSENT OF THE INDIVIDUAL INVOLVED. THIS INFORMATION

WOULD BE DISCLOSABLE ONLY UNDER THE NARROWEST OF CIRCUMSTANCES,

SUCH AS WHEN A COURT ORDER IS ISSUED OR FOR APPROPRIATE BUSINESS

PURPOSES. THE BILL PUTS TEETH INTO ITS MANDATE BY PROVIDING

AGGRIEVED INDIVIDUALS WITH A CIVIL REMEDY, SIMILAR TO THAT IN THE

CABLE ACT AND THE FEDERAL WIRETAP STATUTES.

THIRTY-EIGHT STATES AND THE DISTRICT OF COLUMBIA HAVE LAWS

PROTECTING THE PRIVACY OF LIBRARY USERS. IN THE WAKE OF THE

RELEASE TO A REPORTER OF JUDGE BORK'S FAMILY'S VIDEO RECORDS

DURING HIS SUPREME COURT NOMINATION HEARINGS, STATE AND LOCAL

LEGISLATION IS BEGINNING TO BE ENACTED TO PROTECT VIDEO VIEWERS.

BUT A STRONG, UNIFORM FEDERAL STANDARD IS CLEARLY NEEDED.

DESPITE THE LIBRARY LAWS, THERE HAVE BEEN MANY ATTEMPTS TO OBTAIN

PATRONS' RECORDS, UNDER CIRCUMSTANCES THAT I THINK WOULD VIOLATE
22

MOST PEOPLES' PERCEPTIONS OF THEIR RIGHT TO PRIVACY. WE WILL

HEAR MORE ABOUT THESE INCIDENTS FROM THE AMERICAN LIBRARY

ASSOCIATION'S REPRESENTATIVE. FORTUNATELY, THE LAWS, AND THE

STRONG STANDARDS OF ALL OF THE MAJOR LIBRARY ASSOCIATIONS IN THIS

COUNTRY, HAVE PROHIBITED THE RELEASE OF THE REQUESTED '

INFORMATION.

NOW WE ARE STARTING TO HEAR- ABOUT SIMILAR INTRUSIONS INTO

THE PRIVACY OF VIDEO USERS. JUDGE BORK'S EXPERIENCE MAY BE THE

MOST PROMINENT, BUT THERE ARE ALSO REPORTS THAT VIDEO RECORDS ARE

BEING SOUGHT IN DIVORCE CASES, IN CHILD CUSTODY DISPUTES, AND IN

CRIMINAL PROCEEDINGS. THE VIDEO SOFTWARE DEALERS' ASSOCIATION

REPRSENTATIVE WILL INFORM US ABOUT THESE INCIDENTS, AND ABOUT

VIDEO DEALERS' ADMIRABLE ATTEMPTS TO REFUSE DISCLOSURE UNDER

THEIR OWN CONFIDENTIALITY RULES AND, IN MOST CASES, EVEN WITHOUT

SPECIFIC PROTECTIVE LAWS.

I STRONGLY BELIEVE THAT TOGETHER, THE FIRST AMENDMENT AND

THE FOURTH AMENDMENT PROTECT NOT ONLY THE FREEDOM TO READ, BUT

ALSO THE FREEDOM TO OBTAIN INFORMATION FROM WHATEVER SOURCE, AND

WHATEVER MEDIUM. THEY PROTECT THIS FREEDOM FROM UNAUTHORIZED AND

UNCONSENTED-TO INTRUSIONS.

IT IS APPROPRIATE, THEREFORE, THAT THIS LEGISLATION PROTECTS

THE PRIVACY OF BOTH LIBRARY AND VIDEO USERS. WHEN THEY ENTER A

LIBRARY, AMERICAN CITIZENS SHOULD NOT HAVE TO WORRY THAT A

GOVERNMENT AGENT, OR A REPORTER, OR ANYONE ELSE, WILL BE ABLE TO

FIND OUT WHAT THEY ARE READING. PEOPLE MUST NOT BE DETERRED FROM

READING BY FEARS OF GOVERNMENTAL OR PRIVATE "SNOOPS." THESE

PRINCIPLES APPLY AS MUCH TO CUSTOMERS OF VIDEO STORES AS TO
PATRONS OF LIBRARIES.

UNLESS THE CONGRESS PROVIDES FOR A STRONG NATIONAL

STANDARD, THESE ABUSES MILL CONTINUE TO BE UNREGULATED. WE MUST

NOT ALLOW THAT TO HAPPEN. I AH PLEASED THAT BOTH HOUSES OF

CONGRESS ARE MOVING JOINTLY AND IN A BIPARTISAN MANNER TOWARD

PASSAGE OF THIS LEGISLATION. WE EXPECT TO MOVE IT EXPEDITIOUSLY,

AND WE EXPECT THAT IT WILL BECOME LAW BY THE END OF THE 100TH

CONGRESS. SOME MAY SAY THAT THE INCREASING INVASION OF OUR

CITIZENS1PRIVACY MAY BE UNSTOPPABLE AND INEVITABLE, BUT SO WILL

BE THE EFFORTS OF THIS SUBCOMMITTEE, AND I BELIEVE THE CONGRESS

AS A WHOLE, TO CURB THAT INVASION.
24

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:]
25

STATEMENT OF THE HONORABLE CARLOS J. MOORHEAD

ON H.R. 4947

•VIDEO ANO LIBRARY PRIVACY PROTECTION ACT OF 1988"

AUGUST 3, 1988

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

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 judgeshlp 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 Kastenmeler and our colleague Mr. McCandless

sponsoring on the House side. Senator Leahy and Chairman

Kastenmeler 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:
26

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 1t 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 mall. This approach goes far beyond

fixing the Bork problem and attempts to regulate the mall

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 1s no record to support

legislative action against them. While 1 agree that the

legislation Is well intended, I think it 1s important that we

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

an area where In fact there are no problems.
27

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 CALIFORNIA

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 right•

around the individual: Pass H.R. 4947 and S. 2361.
28

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, ANO 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
29

CHAIRMAN KASTENMEIER, CHAIRMAN LEAHY, COMMITTEE MEMBERS:

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 TRANSCENOS 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
30

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 LESSENED. THE

LEGISLATION YOU ARE CONSIDERING, THEREFORE, COMPLIMENTS THE FIRST

AMENDMENT.

FINALLY, THERE IS AN ELEMENT OF COMMON DECENCY IN THIS LEGISLATION.

IT'S REALLY NOBODY ELSE'S BUSINESS WHAT PEOPLE READ, WATCH, OR LISTEN

WE ALL FELT A SENSE OF OUTRAGE WHEN JUDGE BORK'S VIDEO LIST WAS I

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 RIGHT•AROUND THE

INDIVIDUAL: PASS H.R. 4947 AND S. 2361.

THANK YOU FOR THIS OPPORTUNITY TO SHARE MY THOUGHTS ON THE SUBJECT,

AND I WOULD BE HAPPY TO ANSWER ANY QUESTIONS YOU MIGHT HAVE.
31

Mr. KASTENMEIER. Thank you, Congressman McCandless.

I would like to yield to the Senator from Vermont.

Mr. LEAHY. Thank you.

Al, you mentioned the bipartisan support for this, and I agree

with you. Democrats and Republicans may differ on a lot of issues,

but we tend to agree when it comes to protecting privacy.

You mentioned what happened to Judge Bork. We all agree that

that went beyond the pale.

I well remember when Senator Al Simpson came before the committee during the Bork hearings and announced what happened.

That committee, as you know, was split between those supporting

Judge Bork and those opposed to him. But it was unanimous•the

feeling across the committee of outrage•when we learned of the

disclosure.

Everybody said this just went beyond anything that should be

done. I assume you share my view that that was kind of a low

point in the protection of privacy for public officials.

Mr. MCCANDLESS. Yes, Senator, I certainly do.

Mr. LEAHY. Do you also share my view, though, that this law

goes beyond just a protection for the privacy of public officials, that

it affects us all?

Mr. MCCANDLESS. Beg your pardon?

Mr. LEAHY. DO you feel this bill is not just for public officials?

Mr. MCCANDLESS. NO, sir. It is a cross section of the total population. Obviously, in my comments, I pointed out that privacy is the

right of every individual irrespective of their occupation or status

in life.

Mr. LEAHY. Well, I compliment you for your support and work in

this. You certainly have a well-deserved reputation for your own

strong feelings. I compliment you for it.

Mr. Chairman, I have no other questions.

Mr. KASTENMEIER. The gentleman from California.

Mr. MOORHEAD. I want to congratulate you for your work on this

legislation. This is one question that has come to me from the

direct marketing people. Did you mean this bill to go beyond retail

establishments and cover their direct marketing activities?

Mr. MCCANDLESS. Yes. The bill would involve any distribution, be

that retail, store-front, mail order. I realize there is some objection

in that area of mail order or indirect distribution.

Mr. MOORHEAD. I don't know this to be true because I haven't

talked to them in detail about it, but obviously from the stack of

the solicitations we get, catalogs and so forth, I think the lists of

people that buy from one mail order house are sold to every other

one, and it is a general part of the business.

I just wondered whether the transmittal of those names would

now be against the law if this is passed?

Mr. MCCANDLESS. Yes, it would be. Only the names, if the individual were not to check what we call the negative aspect of the

record, then the name of the individual and the address only could

be made available.

Mr. MOORHEAD. DO you know if there has been any showing of

any violation of privacy by the mail order houses?

Mr. MCCANDLESS. Well, we are
32

Mr. MOORHEAD. In telling what kind of materials people are

buying?

Mr. MCCANDLESS. Mr. Moorhead, I am not privileged to that information relative to existing mail houses. As they merchandise

the various commodities, there is no, in my experience, however, is

that there is no restriction as to the selling of mailing lists or

names on mailing lists according to subject matter, which I think is

the basic root of what it was you were referring to earlier about

receiving a lot of mail.

Because of your name and your position and what you may or

may not have done in the field of merchandising and purchases, becomes an important thing to somebody else and when they consider

you a customer. Therefore your name has a value to it.

Mr. MOORHEAD. It works similar if you give $10 to some organization, it seems like every other one solicits you for their consideration. I think the male order business runs a whole lot the same

way. If you buy

Mr. MCCANDLESS. I would hasten to add that we have to distinguish here between content material and what it is that we are

talking about here in the way of a purchase.

Mr. MOORHEAD. I certainly agree with you totally. This is an outrageous kind of thing to have materials that we are buying and

subscribing to, such as books and videos made public.

Mr. KASTENMEIER. Would my colleague yield?

Mr. MOORHEAD. Yes.

Mr. KASTENMEIER. The bill, as we fashioned it, really has a negative checkoff; that is to say, it assumes you can disclose the name

and address of all persons, unless that person elects to say no. Now,

that would probably not be very many people. So, therefore, for the

most part names and addresses would be available, would presumably become part of these lists, and What we are talking about is

something beyond that.

Mr. MCCANDLESS. Right.

Mr. KASTENMEIER. That is to say, a person would have to consent

to the•to a release of such information as the precise titles of

movies taken out of a video store. So there is a, I think, a protection, which contemplates generally a wide release of names and addresses through the negative checkoff.

Mr. MCCANDLESS. I might compliment the chairman because at

one point in the history of this bill, we had that available without

the negative checkoff, and it was the chairman who in his infinite

wisdom looked at that through his judicial eye and modified it,

which I think made the bill better.

Mr. KASTENMEIER. I'm sorry.

Mr. MOORHEAD. Thank you.

That is all the questioning I had.

Thank you for coming.

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

Mr. BERMAN. NO questions.

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

Mr. DEWINE. NO questions, Mr. Chairman.

Mr. KASTENMEIER. Gentleman from Maryland.

Mr. CARDIN. No questions.

Mr. KASTENMEIER. Gentleman from Virginia, Mr. Slaughter.
33

Mr. SLAUGHTER. NO questions, Mr. Chairman.

Mr. KASTENMEIER. YOU get off easy, my colleague. If there are no

further questions, we thank you, not only for your appearance here

today, but for your leadership and we will try to work together to

see if we can't bring this legislation to fruition.

I appreciate your appearance this morning.

Mr. MCCANDLESS. Thank you, Mr. Chairman.

Mr. KASTENMEIER. Next the Chair would like to call as a panel

Ms. Judith Krug, Director of the Office of Intellectual Freedom of

the American Library Association; Janlori Goldman, Staff Attorney for Project of Privacy and Technology, American Civil Liberties Union; Vans Stevenson, Director of Public Relations for Erol's;

and Richard Barton, Senior Vice President, Direct Marketing Association.

Ladies and gentlemen, you are most welcome. We have a vote on

the House Floor. Ironically what happened is the Senate also has a

vote at this very moment. So I think with the witnesses' agreement, before we go into the testimony of the four witnesses and

they have differing testimony, but nonetheless touching on different aspects, but nonetheless I think it would be good to hear them

in tandem as a group.

Before we do that, we will recess for 10 minutes, pending answering the vote on the House Floor and perhaps by then, also Senator

Leahy might be able to return from his vote in the Senate.

Accordingly, the committee stands in recess for 10 minutes.

[Recess.]

Mr. KASTENMEIER. The committee will come to order.

As the committee reconvenes after its recess for a vote, actually

a vote of both the House and the Senate, and before we get to our

four witnesses who have been introduced, our panel, I would like to

greet, it is a great honor to greet our former colleague, the distinguished Senator from Illinois, Mr. Paul Simon, and I would like to

call on Senator Simon, if he would for an opening statement.

Mr. SIMON. I thank you very, very much, Mr. Chairman. Let me

commend you for having this hearing.

I think one of the things that we, in the House and Senate have

constantly been reminding ourselves is that one of the most fundamental things we ought to be doing is protecting basic freedoms,

and protecting basic freedoms means the freedom that people have

to have access to information without fear of what may happen to

them as a result of requiring or requesting information.

I am old enough and if you will forgive me, Mr. Chairman, you

are old enough along with me and these young people like Howard

Berman around here don't remember this, but we lived through

the McCarthy period.

Mr. BERMAN. I can remember that.

Mr. SIMON. You can remember that? You are older than I

thought, Howard, but I remember being stationed at Fort Holobird

in the old Counter Intelligence Corps and we went through these

classes where people said Frederick March contributed to Yugoslavians' children's relief, and therefore he is suspect and all of

this.

I wrote a letter to the St. Lewis Post Dispatch suggesting that an

investigation of this whole thing ought to be taking place, that
34

something was happening that was very, very fundamentally

wrong. And I got a letter back from him in a very friendly tone

saying it is not safe for you to write that kind of a letter. You

know, we forget how easily our basic freedoms can be circumscribed, and what we ought to be doing here is to maintain our

basic freedoms, and I think that is what this hearing is all about,

and I commend you, Mr. Chairman, for holding the hearing.

Mr. KASTENMEIER. The committee thanks our former colleague

for his poignant remarks and his memory of history.

We will proceed with the panel as has been introduced consisting

of Ms. Krug, Ms. Goldman, Mr. Stevenson and Mr. Barton. We will

start with Ms. Judith Krug, who is director of the Office of Intellectual Freedom for the American Library Association.

TESTIMONY OF JUDITH F. KRUG, OFFICE FOR INTELLECTUAL

FREEDOM, AMERICAN LIBRARY ASSOCIATION; JANLORI GOLDMAN, ESQ., STAFF ATTORNEY, PROJECT ON PRIVACY AND

TECHNOLOGY, AMERICAN CIVIL LIBERTIES UNION; VANS STEVENSON, DIRECTOR OF PUBLIC RELATIONS, EROL'S, INC.. ON

BEHALF OF THE VIDEO SOFTWARE DEALERS ASSOCIATION;

AND RICHARD A. BARTON, SENIOR VICE PRESIDENT, DIRECT

MARKETING ASSOCIATION

Ms. KRUG. Thank you, Mr. Chairman.

Ladies and gentlemen, my name is Judith Krug. I am the Director of the American Library Association's Office for Intellectual

Freedom.

The American Library Association is the oldest and largest national library association in the world. It is 112 years old, having

been established in 1876. ALA speaks not only for our 45,000-

member librarians, libraries, trustees and other interested citizens

throughout the country, but we also speak to a large extent for librarianship throughout the world.

One of the most important aspects of the American Library Association is its intellectual freedom program. As a part of that program, we do take interest in and are concerned about the right of

our citizens, the right of everyone in this country to read what

they will, without fear of reprisal or without fear of being monitored in their reading.

The question of whether or not library records, those records

which identify the uses that individuals make of library materials

and services, are confidential, is not a new question for the ALA.

In fact, we have had a policy on confidentiality since 1970, and this

policy basically has two parts: first, that library circulation records,

in fact all library records, which identify individuals with specific

library materials and services, are private and confidential in

nature and second, that such records should not be made available

to any party, except pursuant to a court order issued by a judicial

authority upon a showing of good cause.

The basis of this policy can be simply stated and I would like to

quote Senator Leahy and probably paraphrase Mr. Kastenmeier

and Mr. McCandless when they said it is nobody's business what

you read, but your own. That is precisely the basis of the ALA confidentiality policy.
35

This belief of librarians in this country has been codified in our

code of ethics. In fact, one of the Code's six articles is devoted specifically and solely to privacy and confidentiality of a patron's use

of libraries. In addition, 38 States and the District of Columbia

have passed statutes which protect the confidentiality of library

use records. These laws, however, are not uniform in their coverage

of either kinds of libraries or kind of services, and as a result, they

do not mitigate the need for a Federal statute in this regard.

It is important to note, however, that not only the ALA policy,

but also the statutes in all the 38 States and DC, do provide mechanisms for compliance with court orders issued by a competent judicial authority. In other words, librarians are not trying to be obstructionists.

We do seek to protect the first amendment rights of patrons and

to safeguard their privacy, but we are not trying to be a road block.

We are trying to preclude what we call fishing expeditions. To explain what these might entail, I would like to give you some examples of the kinds of "fishing expeditions" that my colleagues have

been faced with in the past few years.

There was an incident in Virginia where a husband requested

circulation records of his wife to prove, in their divorce trial, that

she had been "exploring avenues of divorce before the papers were

served."

There was an incident in Albany, New York, where a newborn

infant was found abandoned in an alley by a local college student.

She took the infant immediately to the proper authorities, but, nevertheless, the police investigating the abandonment went to her

college librarian and asked to see the records of the books she

checked out. They wanted to be certain she had not checked out

books on infant care.

Just this past May in Baton Rouge, Louisiana, a parish sheriffs

office ordered the parish library director to turn over a list of

people who checked out books on the occult during the past year.

The sheriffs office wanted this information because, and I quote,

"a lot of times Satanic beliefs are connected with narcotics.' Had

there been any Satanic cults in the parish? No. The sheriff said

there hadn't been. He merely wanted the names, addresses and circulation records of library users, "to weed out the curious from the

serious followers of Satan." How this was to be accomplished

through library records remains a mystery to me and to my colleagues.

In a small Delaware community just a few weeks ago, the request was rather more threatening. The director of a public library

received a call from an IRS agent. The director was informed that

the FBI was going to subpoena borrower records. He refused to tell

the librarian why these records were going to be subpoenaed.

When the librarian explained to him the position of the library

profession on confidentiality, and the fact that Delaware does have

a confidentiality statute, the agent responded, "That is your problem. We will just seize the microfilm."

On the other side of the issue, I have a recent example from the

Brooklyn Public Library, from a patron who telephoned the library

seeking information on the recently concluded Soviet Communist

Party Congress in Moscow. She was told that while the complete
36

proceedings had not yet been published, information on the Congress could be found in the New York Times, available in the library's periodicals division. The woman responded, "But if I come

in and ask to see that material, am I going to be reported?"

I consider this to be a serious chilling effect on the use of libraries in this country. Libraries, of course, are the only publicly available resource for ideas and information covering all the problems

and issues that face us. It is our belief that use of this facility, this

wonderful national resource, should be private and confidential

and should be nobody's business but your own.

I thank you very much.

Mr. KASTENMEIER. We thank you for your statement, Ms. Krug.

[The prepared statement of Ms. Krug follows:]
37

Summary of Testimony Presented on Behalf of the

American Library Association

The role of libraries In this country is to provide unmonitored access to the

broadest possible diversity of ideas and information. All persons In this

country have a First Amendment right to seek and to use all publicly-available

information and all have a right to privacy in doing so. These two rights are

inseparable and form the essence of Intellectual freedom, one of the guiding

principles of the library profession in this country.

The question of whether or not library use records are confidential Is not new.

It is a question with which the ALA and its more than 45.000 member librarians,

library trustees, and libraries have been concerned for many years.

Since 1970 the ALA has had a policy (a) that library circulation records are

confidential In nature: and (b) should not be made available to any party except

pursuant to a court order issued by a Judicial authority upon a showing of good

cause.

The basis of this policy may be simply stated: ALA believes that the reading

interests of library patrons are and should be private and that any attempt to

invade such privacy without a showing of a, direct and legitimate need constitutes

an unconscionable and unconstitutional invasion of the right of privacy of

library patrons and the "right to read" implicitly guaranteed by the First

Amendment.

This belief has been codified in the ALA's Code of Ethics. Article II of which

reads:

Librarians must protect each user's right to privacy with respect to

Information sought or received, and materials consulted, borrowed, or

acquired.

In addition, thirty-eight states and the District of Columbia currently protect

the confidentiality of library use records. These laws, however, are not uniform

in their coverage of either kinds of libraries or services. As a result, they do

not mitigate the need for a federal statute In this regard.

It Is important to note that ALA's Policy, the laws of the various states and the

District of Columbia, and the proposed legislation do provide mechanisms for

compliance with court orders Issued by a competent Judicial authority after a

showing of good cause. We do not seek to obstruct legitimate law enforcement

investigations. We do seek to protect the First Amendment rights of patrons and

to safeguard their privacy. The recurring use of libraries as Investigative

sites of first resort, what we call "fishing expeditions," is an unwarranted

Infringement of patrons' rights to unmonitored access to library materials and

services. We recognize that while competing social values must on occasion be

balanced, freedom of speech-and the right to privacy should be compromised only. \

by a compelling need, such need to be determined by a court of competent

Jurisdiction.

The ALA urges your strong support of this much-needed privacy legislation.

Thank you.
Statement of

Judith T. Krug

Director, Office for Intellectual Freedoa

American Library Association

and

C. James Schmidt

Executive Vice Preeldent, Research Libraries Group, Inc.

before the Joint Hearing of the.

Subcommittee on Technology and the Law

of the

Senate Judiciary committee

and the

Subcommittee on Courts, Civil Liberties, and the

Administration of Justice

of the

Rouee committee on the Judiciary

on the

Video and Library Privacy Protection Act of 1988

August 3, 1988

Thle testimony, supporting the adoption of the Video and

Library Privacy Protection Act of 1988. Is presented on behalf of

the American Library Association (ALA) by Judith F. Krug,

director of the ALA Office for Intellectual Preedoa and C. James

Schmidt, chair of the Association's Intellectual Freedom

Committee.

AMERICAN LIBRARY ASSOCIATION

The American Library Association, founded In 1876, le the

oldest and largeet national library association In the world.

Its concerns span all types of libraries: state, public, school

and acadealc libraries, as well aa libraries eervlng persons In

government, commerce and industry, the arts, the araed eervlces,

hospitals, prleone, and other institutions. Nlth a membership of

more than 45,000 libraries, librarians, library trustees, and
2

'other Interested persons from every state and many countries of

the world, the Association Is ths chief spokesaan for the people

of the United States In their search for the highest quality of

library and Information services. The Association works closely

with more than 70 other library associations In the United

States, Canada, and other countries, •• well as with >any other

organizations concerned with education, research, cultural

development, recreation, and public service. ALA Is governed by

Its Council, coaprlsed of 172 members.

The Intellectual Freedom Committee was established In 1940

by the Council. The Committee's statement of responsibility

reads. In part, "To recommend such stsps as may be necessary to

safeguard the rights of library ussrs, libraries, and librarians.

In accordance with the Plret Amendment to the U.S. Constitution

and the LIBRARY BILL OP RIGHTS (copy attached) as adopted by the

ALA Council.

THE ROLE OP LIBRARIES AND LIBRARIANS IN A DEMOCRATIC SOCIETY

Ours Is a constitutional republic - a government of the

people, by the people, and for the people. But In order for this

form of government to function effectively, Its electorate must

be able to Inform Itself - the electorate must have information

available and accessible. The role of libraries as impartial

resources providing information on all points of view Is

essential for our type of government and society, and must not

be compromised.
40

3

Libraries are perhaps the greatest resource a free people

can claim. They most definitely are the only places In our

society where every person can find materials representing all

points of view concerning the problems and Issues confronting

them aa Individuals and as a society. In addition, libraries

make these materials available and accessible to anyone Mho

desires or requires them, regardlees of age, race, religion,

national origins, social or political views, economic status, or

any other characteristic.

PRINCIPLES OF THE LIBRARY PROFESSION

One of the guiding principles of the library profession In

this country is Intellectual freedom. To librarians, this

concept Involves two Inseparable rights. The first Is the First

Amendment right to seek and obtain access to all publiclyavailable ldeaa and information. The second Is the right to have

what one has sought and what ona has used kept private. The

right to Information cannot help but be inhibited If personal

reading or research Interests can and will become known to others

without one's own consent.

It was. In fact, not all that long ago that, for example,

responsible U.S. scholars working in the areaa of Eaetern

European history, economics, and political sclsnce were publicly

branded as "communists" because It became known that they read

extensively from communist bloc publications, notwithstanding the

fact that such publications constitute the primary source of

Information on such subjects.
41

4

Even today, there are people In every community who believe

that a person's Interest In a subject must reflect not merely

Ms Intellectual Interests, but his character and attitudes.

Thus. In the view of sons people, a person who reads the

"underground press" Is branded as a radical; a person who reads

atheistic tracts Is marked an atheist; a person who reads

sexually oriented literature Is Identified as a libertine; a

person who reads works on apartheid Is characterized as a racist;

a person who reads gay literature Is homosexual; and one who

reads about the occult and satanlsm Is "Into" witchcraft. Such

characteristics are not justified or warranted by such literary

pursuits but If charged, they can be personally and

professionally damaging.

The American Library Association has had a "Policy on

Confidentiality of Library Records" (copy attached) since 1970.

This formal policy was adoptsd at that time In response to

attempts by U.S. Treasury agents to examine circulation records

In a number of cities. Since 1970, thirty-eight etates and the

District of Columbia have enacted "Confidentiality of Library

Records" statutes (list attached).

In 1981, the Association adopted a "Statement on

Professional Ethics (copy attached) Including a Code of Ethics.

Article II of this Code reads:

Librarians must protect each ueer's right to privacy with

respect to Information sought or received, and materials

consulted, borrowed, or acquired.
42

s

The basis of both the Policy on Confidentiality of Library

Records and Article II In the Code of Ethics may be simply

stated: ALA believes that the reading Interests of library

patrons are and should be private and that any attempt to invade

such privacy without a showing of direct and legitimate need

constitutes an unconscionable and unconstitutional invasion of

the right of privacy of library patrons and the "right to read"

Implicitly guaranteed by the First Amendment.

Perhaps some examples of the kinds of requests that

librarians constantly receive will explicate our concern.

e In 1976, In New Mexico, police asked for circulation

Information on certain books to Investigate a "Chicane guerilla

movement" supposedly operating In the town.

• A divorced father in Illinois wanted access, la 1978, to

the public library story hour registration recorde to make sure

that his child was using his name and not that of the mother's

current husband.

e Also In 1978, religious groups In Florida requested ths

names of persons who had read certain books. The purpoee was to

contact such readers and urge them to join a religious

organization.

e In 1979, New York detectives asked for circulation records

of a list of books on lie detectors because they suspected

"somebody was trying to beat a lie detector test."

• That same year in Virginia, a husband requested

circulation records of his wife to prove in their divorce trial
43

6

that she had been "exploring avenues of divorce" before he filed

the papers.

• In 1980, a hospital staff member In Illinois ordered

sexually explicit films for use In therapy classes. The flime

were placed In the hospital library and the librarian was then

requested - by another ataff member - to provide hie with the

names of persons who had borrowed the fllae.

e In i960, a local college student In Albany, Raw York,

found a newborn Infant abandoned In an alley. She took the

Infant immediately to proper authorities. Nevertheless, police

Investigating the abandonment went to her collage librarian and

aaked to eee the records of the books she had checked out. They

wanted to aacertaln If she had checked out books on Infant car*.

• In 1961, the Moral Majority In Washington Stats, deaanded

the Washington State Library release the naaea "of public schools

and public school employees" who borrowed a 21-minute movie

entitled ACHIEVING SEXUAL MATURITY.

a In 1988, law enforcement officials In Crawfordsvllls,

Indiana, demanded public library circulation records on the

grounds that these records wsrs needed for research into

"satanlsa."

• In Baton Rouge, Louisiana, In March of this ysar, the

Rapidee Parish Sheriff's Offlcs ordered the parish library

director to turn over a list of people who had checked out booke

on the occult in the laat year. The sheriff's office wanted this

information because, "a lot of times" aatanlc beliefs are
44

7

"connected with narcotics." Had there been any satanlc cults In

the parish? No. the sheriff "merely" wanted the names,

addresses and circulation records of library users "to weed out

the curious from the serious followers of satanIsm." How this

was to be accomplished through library records remain* a mystery.

s In a small Delaware library, the request was rathar more

threatening. In May of this ysar, the director of a public

library received a call from an Internal Revenue Service agent.

The director was Informed that the "IRS Is going to subpoena the

library's borrower records." The agent would not say why. Whan

the director stated the profession's stance on the

confidentiality of library records, the agent responded, "That's

your problem•we will Just seize your microfilm."

• And just last Thursday, ALA was lnforaad (by a Journalist,

no less) that the police department of Whitestown, New York, had

asked for the records of library patrons who checked out

materials on satanlsa and the occult during the last four years.

In some of the states where thess Incidents occurred, there

were statutes protecting the confidentiality of library use

records. In others, there were not. Occasionally, thess and

other Incidents led to the adoption of such statuea.

It is important to note that ALA'S Policy, and the laws of

the various states and the District of Columbia, do provide

mechanisms for compliance with court orders Issued by a competent

Judicial authority after a showing of good cause. We do not seek

to obstruct legitimate law enforcement Investigations. We do
45

8

seek to protect the First Amendment rights of patrons and to

safeguard their privacy. The recurring use of libraries as

Investigative sites of first resort, what We call "fishing

expeditions," is an unwarranted infringement of patrons' rights

to unmonltored access to library materials and services. He

recognize that while competing social values must on occasion be

balanced, freedom of speech and the right to privacy should be

compromised only by a compelling need, such need to be determined

by a court of competent jurisdiction.

VARIATIONS IN SCOPS AND COVERAGE OF EXISTING STATE LAWS

Many of the etatutes anacted by the thirty-eight statss and

District of Columbia which protect the privacy of library

records did not adequately anticipate the ways technology has

changed the character of library use. Thus, many of these

statutee apply to only one or two kinds of libraries. I.e.,

public, school, and/or academic. In addition, many of the

statutes refer only to materials "checked out" of libraries.

Increasingly, however, library patrons use online databaaes.

Moreover, none of these statues protect privacy rights of ths

information in multi-library, not to mention multi-state,

networks, many of which share not only cataloging but alao

circulation information, for example, In the cass of intsrllbrary

loans, while many people continue to think of libraries ae the

small local facility where one checks out the lateet beat seller,

widespread computerization hae radically changed the face of

libraries across this country.
46

9

Some of the state laws apply only to public libraries, not

to school libraries. Some apply only to those libraries

receiving state funds. This legislation would both extend the

uneven coverage of the privacy protection now afforded to library

patrons and would extend the scope of library use that Is

protected.

It Is of critical importance that the right to free and

unmonitored access to the widest possible diversity of publiclyavailable ideas and Information not only be protected but also

expanded.

BALANCING COMPETING INTERESTS

Any legislation considered by Congress of necessity

must accommodate diverse interests. Among these potentially

affected by H.R. 4947 and S. 2361, two are prominent - the direct

mail organizations and law enforcement agencies. The first have

little. If any, relationship to libraries and thus we make no

comment about these interests.

Concerns which may be expressed by law enforcement agencies

seem to ALA to be without basis. H.R. 4947 and S. 2361 would

impose no more of a burden than is now the case for subpoenas and

warrants. Given the evidence that law enforcement agents have in

the past attempted to secure personally Identifiable information

from libraries without court orders, the protection afforded by

this bill Is necessary.
47

10

In closing, we quote from Senator Sea J. Brvln, Jr., who. In

1970, wrote: "... Throughout history, official surveillance of

the reading habits of citizens has been a 11tans test of

tyranny."* Olven the laportance of privacy to the sffactlvsness

of libraries in our democratic society, this legislation is

desirable and the American Library Association urges that It

become the law of the land (ses attached resolution).

•Letter to Secretary of the Treasury David M. Kennedy, dated July

9. 1970.
48

Hibrarg Sill nf StgljtH

The American Library Association affirms that all libraries are forums for

information and ideas, and that the following basic policies should guide

their services.

1. Books and other library resources should be provided for the interest

information, and enlightenment of all people of the community the library

serves. Materials should not be excluded because of the origin, background,

or views of those contributing to their creation.

2. Libraries should provide materials and information presenting all

points of view on current and historical issues. Materials should not be proscribed or removed because of partisan or doctrinal disapproval.

3. Libraries should challenge censorship in the fulfillment of their responsibility to provide information and enlightenment

4. Libraries should cooperate with all persons end groups concerned

with resisting abridgment of free expression and free access to Ideas.

5. A person's right to use a library should not be denied or abridged

because of origin, age, background, or views.

6. Libraries which make exhibit spaces and meeting rooms available to

the public they serve should make such facilities available on an equitable

basis, regardless of the beliefs or affiliations of individuals or groups requesting their use.

Adopted June 18,1948.

Amended February 2,1961, June 27,1967, and January 23,1980,

by the ALA Council.
49

12

POLICY ON CONrlOEWTIALITY Or LIBIAIY RECORDS*

The Council of the American Library Aeaociation strongly recooaendt chat

the reeponeible officer! of etch library, cooperative eyatem, and

consortium in the United Statea:

1. Formally adopt • policy which ipeeifically recognltee It*

circulation racorda and other racorda identifying tha nemee of

library uaara to ba confidential In natural.

2. Advlae all librarian* and library employeea that auch racorda

•hall not ba aada avallabla ta any agency of atata, federal, or

local government except purauant te auch proceaa, order, or

aubpoana aa may ba authoriaed under tha authority of, and

purauant to, federal, atata, or local la* relating to civil,

criminal, or administrative diecovery procedure* or leglalatlve

inveettgatlve pcwar.

3. laalat tha laauanca er enforcement of any auch procaaa, order,

or aubpoana until auch tlaa aa a proper ehoving of gooe\ caua*

haa bean Hat In a court of competent jurledictiom.**

•Note: Saa alto ALA POLICY MARTIAL 54.15 - COM OF ETHICS, point #),

"Llbrarlana muec protect each uaer'a right ta privacy vltk reapect to

information (ought or received, and auterltla conaulted, borrowed, or

acquired."

**Note: Point 3, above, aaana that upon receipt of auch proceaa, order,

or aubpoene, the library'a officer* will cooault vlth their legal couneal

to determine if auch proceaa, order, or aubpoana ia In propar fora and If

there la a (having of good cauae for ita leeuanca; If tha proca**, order,

or aubpoana ia not in propar farm or if good cauaa haa not bean (hewn,

they vill inaiat that auch dafocte ba cured.

Adopted Jenuary 20, 1971; ravlaed July 4, 1975, July 2, 1986,

by the ALA Council

See reveree (ide for euggaetad proceduree for implementation.

[ISBN 8389-60*2-0)
ia<

50

SUGGESTED PROCEDURES FOR IMPLEMENT ISO

"POLICY OK CONFIDENTIALITY OP LIBRARY RECORDS"

When drafting local policies, llbrarlca ahoultl consult with their

lagal counsel to Insure these policies are based upon and consistent

«lth applicable federal, state, and local lav concerning the

confidentiality of library racorda. the disclosure of public records,

and the protection of Individual privacy.

Suggested procedures include the following:

1. The library staff aeaber receiving the request to exaalne or

obtain information relating to circulation or other racorda

Identifying the noaea of library users, will Immediately refer

the person making the request to the responsible officer of the

Institution, who shall explain the confidentiality policy.

2. The director, upon receipt of such process, order, or subpoena,

shall conault with the appropriate legal officer aaalgned to the

Institution to determine If such process, order, or subpoena la

In good form and If there la a showing of good cause for its

Issuance.

3. If the process, order, or subpoena la not in proper form or if

good cauae haa not been shorn. Insistence shall be asde that each

defects be cured before eny records are released. (The legal

proceaa requiring the production of circulation or other library

records shall ordinarily be in the fora of subpoena 'duces tecum"

[bring your records] requiring the responsible officer to attend

court or the taking of his/her disposition and aay require

hla/her to bring along certain deeignated circulation or other

specified records.)

4. Any threets or unsuthorlzed deaanda (i.e.. those not supportsd by

s process, order, or subpoena) concerning circulation and other

records Identifying the naaea of library users shell be reported

to the appropriate legal officer of the institution.

5. Any problems relating to the privacy of circulation and other

records Identifying the names of library users which are not

provided for above shall be referred to the responsible officer.

Adopted by the ALA Intellectual Freedom Committee.

January 9. 1983; revissd January 11, 1988

[confpol pro]
51

13

CONFIDENTIALITY STATUTES

List of States

The following states have confidentiality of library records

statutes:

Alabama

Alaska

Arizona

California

Colorado

Connecticut

Delaware

District of Columbia

Florida

Georgia

Illinois

Indiana

i

Iowa

Kansas

Louisiana

Maine

Maryland

Massachusetts

Michigan

Minnesota

Missouri

Montana

Nebraska

Nevada

New Jersey

New york

North Carolina

North Dakota

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Tennessee

Virginia

Washington

Wisconsin

Wyosing

[confstat.lst]
52

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53

is

AMERICAN LIBRARY ASSOCIATION

SO CAST HU«ON STMCT - CHICAGO. ILUMOIS *0«ll - 13121 »4« «7SO

Resolution In Support of Video and Library Privacy

Protection Act

WHEREAS. The Flrat Aaendaeot to the US. Constitution protecte

the freedow of all to read and to view, and

WHEREAS, a free society requires an lnforaed cltlienry In order

to govern Itself, and

WHEREAS, an lnforaed citizenry Bust have open access to

information wherever It way he sought, and

WHEREAS, this Association through policy and action staunchly

defenda the rights of all people In the U.S. to

education and entertelnnent without the chilling

conatralnt of another paraon or entity reviewing that

activity, and

WHEREAS, legislation pending before the U.S. louee of

Representatives and Senate (the Video and Library

Privacy Protection Act. H.B. 494T and S. 2361) seeks to

protect theae constitutions! rlghta.

THEREFORE. BE IT RESOLVED, that the Aaerlcan Library Association

strongly supports the Video and Library Privacy

Protection Act. H.B. 4947 and S. 2361.

Adopted July 13. 19SB. by the ALA Council
54

Mr. KASTENMEIER. Next we would like to call on Janlori Goldman, Staff Attorney, Project on Privacy and Technology, American

Civil Liberties Union.

Ms. GOLDMAN. Thank you very much. I appreciate the opportunity to be here today to testify on the Video and Library Privacy Protection Act legislation by both the House and Senate that would

create a Federal right to privacy and video type rental or sale

records and library circulation records.

The movies we view in the privacy of our home and the books we

borrow from the library may reveal sensitive, personal information

about us and should not be disclosed absent a compelling State interest in the information. Passage of the Video and Library Privacy

Protection Act will be an important step towards allowing individuals to maintain some control over this information.

The ACLU strongly supports the legislation and we commend

Congress for acting quickly to create a substantive privacy barrier

around First Amendment protected information. In this age of information and computers, in which we are forced to turn over an

enormous quantity and variety of personal information in exchange for doing business with others, we have relied on Congress

to enact information privacy legislation.

We welcome the resurgence of privacy coalitions and the

groundswell of public support for privacy that was reignited during

last year's confirmation hearings. We hope that the momentum

will not be lost and that we can continue to move forward to give

citizens control over their personal information.

The Video and Library Privacy Protection Acts of 1988 prohibit

video service providers and libraries from disclosing personally

identifiable information except in limited circumstances, such as

with the individual's consent or pursuant to a court order.

The legislation gives people control over their personal information divulged and generated in exchange for receiving services

from video providers and libraries. These bills reflect the founding

principle of the Privacy Act of 1974 information collected for one

purpose may not be used for a different purpose without the individual's consent.

The need for the Video and Library Privacy Protection Act has

been clearly established, not only be the unauthorized disclosure of

the Bork family's video rental list, but by a history of unauthorized

video and library record disclosures.

Thirty-eight States and the District of Columbia have statutes

protecting the confidentiality of library records. In addition, major

library organizations have adopted very strong policies on the confidentiality of library patron records.

Nothing makes more clear the need for this legislation than the

unauthorized disclosure of the Bork family's video rental list. The

City Paper reporter attempted to use the video list to create a profile of Judge Bork's private character. The unauthorized release of

Judge Bork's video list, which was then used to investigate his

character, cannot be condoned, just as we would not condone the

breaking into his home to discover what books he reads.

The ACLU vigorously supports these bills. We believe, as does

the majority of the American public, that privacy is an enduring
55

and cherished value and that legislation is necessary to protect personal, sensitive information.

The public's concern for their privacy rights dramatically increased during Judge Bork's confirmation hearings. In fact, the

majority of Senators who voted against his confirmation cited their

concern about the Judge's limited view of the constitutional right

to privacy. A broad-based, bipartisan coalition pulled together

shortly after the disclosure of the Bork family's video list to support remedial legislation to ensure such a thing could never

happen again.

Privacy is more than just the right to be let alone. Our right to

privacy is intimately tied to our sense of individual autonomy•

that when we are not committing a crime, we should be able to live

our lives outside of the public eye. This particularly true when our

activities implicate both First Amendment and privacy values.

These are precisely the type of activities addressed by this legislation.

The Supreme Court, in NAACP v. Alabama, recognized the

severe chilling effect on First Amendment freedoms that can result

from the unauthorized disclosure of one's personal, political beliefs.

These precious rights have grown increasingly vulnerable with

the growth of advanced information technology. The new technologies not only foster more intrusive data collection, but make possible increased demands for personal, sensitive information. This

massive and sophisticated data collection increases the threat of

private and Government surveillance.

New technologies enable people to receive and exchange ideas

differently than they did at the time the Bill of Rights was drafted.

Personal papers once stored in our homes are now held by others

with whom we do business. Transactional information may be

easily stored and accessed. Records of our reading and viewing histories are now maintained by libraries, and cable television and

video companies. The computer makes possible the instant assembly of this information.

The ACLU is concerned about the danger posed by the aggregation of separately compiled lists to create profiles on individuals•

the phenomenon of the womb-to-tomb dossier.

In its 1977 report, "Personal Privacy in an Information Society,"

the Privacy Protection Study Commission concluded that an effective national information policy must embody three major principles: minimize intrusiveness, maximize fairness and create legitimate, enforceable expectations of confidentiality. As a general rule,

the Commission recommended, organizations that maintain a confidential record must be placed under a legal duty not to disclose the

record without the consent of the individual, except in certain limited circumstances, such as pursuant to a search warrant or subpoena.

Even in such instances, the individual must have the right to

challenge the court order before disclosure of the record. The Commission s finding most pertinent here is that there should be a

close correspondence between an individual's expectation of the

uses to be made of his or her information and the uses that are

actually made of it.
56

The Commission noted the strong push for greater selectivity in

the use of records about individuals to develop mailing lists. "That

drive, coupled with new technological capabilities could change the

character of the way direct-mail operations are conducted, a

change called "troubling" by Publishers Clearing House and Computer World, who testified before the Commission.

The technological environment anticipated, by the Commission

has arrived and we must meet the threats to privacy posed by the

uses of these systems. Last Sunday's New York Times reports that

American Express is using new technology to develop a system to

track card-holders' charge slips.

"The company's computer might identify a frequent traveler to

Tokyo, or an avid tennis player. Working with American Express,

a Tokyo hotel or a local sporting goods shop could then custom

tailor advertising to the card-holder."

That is precisely the situation we are trying to prevent here with

the exchange of First Amendment-related information, such as the

movies we watch. This legislation is intended to be a protection for

consumers, not a punishment on the industry. That is why it is

supported by Erol's and VSDA and the library community. The legislation before us today promises to be another positive congressional response to the need for protections on personal, sensitive information.

The ACLU is hopeful that the Video and Library Privacy Protection Act will continue to garner broad, bi-partisan support. We look

forward to continuing to work closely with you to ensure passage of

this important and timely legislation.

Thank you.

[The statement of Ms. Goldman follows:]
57

SUMMAP-Y OF ACLU TESTIMONY

I appear today on behalf of the ACLU to testify in

support of the Video and Library Privacy Protection Acts, S.2361

and H.R.4947, legislation introduced in both the House and the

Senate that would create a federal right to privacy in video tape

rental or sale records and library circulation records.

The First and Fourth Amendments to the United States

Constitution, when read together, give rise to a powerful

argument in favoring of extending legal protection to video and

library records. The movies we view in the privacy of our home

and the books we borrow from the library may reveal sensitive,

personal information about us and should not be disclosed absent

a compelling state interest in the information. Passage of the

Video and Library Privacy Protection Act will be an important

step towards allowing individuals to maintain some control over

this information.

The ACLU strongly supports the legislation and we commend

Congress for acting quickly to create a substantive privacy

barrier around First-Amendment protected information. In this

age of information and computers, in which we are forced to turn

over an enormous quantity and variety of personal information in

exchange for doing business with others, we have relied on

Congress to enact information privacy legislation.

The legislation before us today promises to be another

positive Congressional response to the need for protections on

personal, sensitive information.

The ACLU is hopeful that the Video and Library Privacy

Protection Act will continue to garner broad, bi-partisan

support. He look forward to continuing to work closely with you

to ensure passage of this important and timely legislation.
58

TESTIMONY

OF

JAMLORI GOLDMAN

STAFF ATTORNEY

ON BEHALF OF THE

AMERICAN CIVIL LIBERTIES UNION

ON

S. 2361 AND H.R. 4947

THE VIDEO AND LIBRARY PRIVACY PROTECTION ACTS OF 1988

BEFORE THE

SUBCOMMITTEE ON TECHNOLOGY AND THE LAW

SENATE JUDICIARY COMMITTEE

AND THE

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE

ADMINISTRATION OF JUSTICE

HOUSE JUDICIARY COMMITTEE

AUGUST 3, 1988
Mr. Chairman and Members of the Committee:

IWRC-PVCTIQH

I appear today on behalf of the ACLU to testify in

support of the Video and Library Privacy Protection Acts, S.2361

and H.R.4947, legislation introduced in both the House and the

Senate that would create a federal right to privacy in video tape

rental or sale records and library circulation records. I am a

staff attorney on the ACLU's Project on Privacy and Technology, a

research project that addresses how computers impact on

information and privacy. The ACLU is a nationwide, nonpartisan

organization with 250,000 members dedicated to preserving

citizens' constitutional rights.

The First and Fourth Amendments to the United States

Constitution, when read together, give rise to a powerful

argument in favoring of extending legal protection to video and

library records. The movies we view in the privacy of our home

and the books we borrow from the- library may reveal sensitive,

personal information about us and should not be disclosed absent

a compelling state interest in the information. Passage of the

Video and Library Privacy Protection Act will be an important

step towards allowing, individuals to maintain some control over

this information.

The ACLU strongly supports the legislation and we commend

Congress for acting quickly to create a substantive privacy

barrier around First-Amendment protected information. In this

age of information and computers, in which we are forced to turn
over an enormous quantity and variety of personal information in

exchange for doing business with others, we have relied on

Congress to enact information privacy legislation.

THE VIDEO AND LIBRARY PRIVACY PROTECTION ACTS OF 1988

The Video and Library Privacy Protection Acts of 1988

prohibit video service providers and libraries from disclosing

personally identifiable information except in limited

circumstances, such as with the individual's consent or pursuant

to a court order. The legislation gives people control over

their personal information divulged and generated in exchange for

receiving services from video providers and libraries. These

bills reflect the founding principle of the Privacy Act of 1974-

information collected for one purpose may not be used for a

different purpose without the individual's consent.

EXCEPTIONS

The exceptions to the prohibition on disclosure are narrowly

tailored, allowing disclosures with the individual's consent, for

a legitimate business purpose or pursuant to a court order. The

ACLU supports the legislation's requirement that, as a general

rule, personally identifiable information may only be disclosed

with the prior written consent of the individual.

The House bill requires the individual must be informed as

to what information will be disclosed and to whom. Services may
61

not be denied to individuals who choose not to allow the

disclosures. This provision grants individuals the most

meaningful control over their information, while allowing the

recordholder to use the information as necessary for legitimate

business purposes.

The ACLU also supports the section in both bills allowing a

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.

The legislation's court order requirement, comparable to

the standard embodied in the Cable Communications Policy Act of

1984, provides that before a court order can be issued, a law

enforcement agency must present clear and convincing evidence

that the record subject has engaged in criminal activity and that

the information sought would be highly probative in a criminal

proceeding. In addition, the House bill mandates the agency must

show that its attempts to use less intrusive means to gain the

information failed. The agency must also make the case that the

value of the information sought outweighs the individual's

privacy interests.. Both bills require that upon issuance of a

court order, individuals must receive, notice and the opportunity

to challenge the order. The ACLU supports this standard. We

believe it is strong, effective and fair, and will not create an

absolute ban on disclosure where the information is necessary for

law enforcement purposes.
62

REMEDIES

The ACLU strongly supports the legislations' civil remedies

section, providing that an individual harmed by a violation of

the Act say seek compensation in the form of actual and punitive

damages, equitable and declaratory relief and attorney's fees and

costs. This section puts essential teeth into the legislation,

ensuring that the law will be enforced by individuals who suffer

as the result of unauthorized disclosures.

Statutory damages are necessary to remedy the intangible

harm caused by privacy intrusions. Similar remedies exist in the

Cable Communications Policy Act and the federal wiretap statutes.

We have seen the promise of the 1974 Privacy Act fade due to the

lack of an effective enforcement mechanism. We applaud members

in both the Rouse and the Senate for including a civil remedies

section in the Video and Library Privacy Protection Acts.

THE NEED FOR LEGISLATION

The need for the Video and Library Privacy Protection Act

has been clearly established, not only by the unauthorized

disclosure of the Bork family's video rental list, but by a

history of unauthorized video and library record disclosures.

Library Records

Thirty-eight states and the District of Columbia have
63

statutes protecting the confidentiality of library records.

In addition, major library organizations have adopted very strong

policies on the confidentiality of library patron records.

The American Library Association adopted a policy on

confidentiality of library records in 1970 in response to

attempts by United States Treasury agents to gain access to

circulation records.

There have been recent reports that the FBI has been asking

library personnel in various libraries around the country to

divulge patrons' records. However, James Geer, Assistant

Director of the FBI's Intelligence Division recently testified:

"I can assure you that the FBI is not now nor has it even been

interested in the reading habits of American citizens. No records

or reading lists of any U.S'. citizen have been sought or obtained

by the FBI in any of our contacts with librarians either within

or outside the New York City area." (Hearings before the

Subcommittee on Civil and Constitutional Rights of the House

Committee on the Judiciary. 100th Cong., 2nd Sess., 8 (July 13,

1988) unofficial transcript. Hereinafter "FBI hearing"). In his

testimony, Mr. Geer also noted: "I have found no situation at all

where we got any records or any information on any U.S. person as

far as library records or personal information goes, any. . . .

And if we find that we are about to violate a state statute in

any sense, we will back away from that." (FBI hearing at 33,

28).

As the Bureau has indicated, and as Representative
64

Kastenmeier pointed out in his statement in the June 29, 1988

Congressional Record, if the FBI is not interested in obtaining

library patrons' records, then the Video and Library Privacy

Protection Act will not interfere with the Bureau's activities.

In this instance, any exception for national security purposes is

unjustified and will weaken the intended strength of this

legislation.

Video Rental Lists

Nothing makes more clear the need for this legislation than

the unauthorized disclosure of the Bork family's video rental

list. The Citv Paper reporter attempted to use the video list to

create a profile of Judge Bork's private character. The

unauthorized release of Judge Bork's video list, which was then

used to investigate his character, can not be condoned, just as

we would not condone the breaking into his home to discover what

books ha reads.

Although the disclosure of Judge Bork's list may be the most

sensational and well-known disclosure, other similar incidents

have been documented. For instance. Jack Messer, vice-president

of the Video Software Dealer's Association and owner of 22 video

rental stores, reported in the Philadelphia Inquirer that the

attorney for the wife in a divorce proceeding made an informal

request for the records of every film rented by her husband in an

effort to show that, based on his viewing habits, he was an unfit

father.
Again, the movies we watch in the privacy of our own hones

nay reveal a great deal about our politics and personalities, the

nost personal, sensitive aspects of ourselves that we may choose

to express outside the scope of the public's gaze.

THE LEGISLATION'S GENESIS: THE CONCERN FOR PRIVACY

The video rental list issue gained national attention during

the confirmation hearings of Judge Robert Bork after a reporter

for Cltv Paper obtained a list of the video tapes rented by Judge

Bork and his family. At that time, many Senators, including

Senators Alan Simpson, Joseph Biden, and Patrick Leahy, expressed

outrage at this intrusion into the Bork family's privacy.

Senator Leahy characterized the disclosure of the tapes as "an

issue that goes to the deepest yearning of all Americans that we

are here and we cherish our freedom and we want our freedom. We

want to be left alone." (Nomination of Robert H. Bork to be

Associate Justice of the Supreme Couret of the United States:

Hearings before the Senate Committee on the Judiciary. 100th

Cong., 1st Sess., 1374 (September 28, 1987). Hereinafter

"Confirmation Hearings"). Senator Simpson specifically asked for

the ACLU's reaction to the list disclosure. By the end of the

day, we responded with a letter to the editor of Cltv Paper and a

commitment to Senator Simpson to work on legislation to safeguard

individuals from similar privacy intrusions. (See Confirmation

Hearings at 1372-74, 1674-77 (September 29, 1988).

On October 21, 1987, Representative Al McCandless introduced
66

the Video Privacy Protection Act of 1987 to create a "federal

protection from this kind of snooping" by preventing the

unauthorized disclosure of a person's video rental history.

Representative McCandless' early action sparked the work of

others in the House and the Senate. The need to protect video

rental lists was widely supported, but there was also a strong

belief that the First Amendment and privacy concerns raised by

the unauthorized disclosure of video rental lists necessitated

expanding the bill to cover library borrower records.

On Hay 10, 1988, Senator Leahy introduced the Video and

Library Privacy Protection of 1988, co-sponsored by Senators

Simon, Grassley, and Simpson. On June 29, 1988, Representative

Kaatenmeier joined Representative McCandless in introducing an

expanded version of the original Bouse legislation.

The ACLU vigorously supports these bills. He believe, as

does the majority of the American public, that privacy is an

enduring and cherished value and that legislation is necessary to

protect personal, sensitive information. A number of Harris

surveys have documented the growing public demand for privacy

legislation. In a 1983 analysis of their survey results, Louis

Harris 4 Associates concluded:

Particularly striking is the pervasiveness of support for

tough new ground rules governing computers and other

information technology. Americans are not willing to endure

abuse or misuse of information, and they overwhelmingly

support action to do something about it. This support

permeates all subgroups in society and represents a mandate

for initiatives in public policy. (Louis Harris, The Road

after 1984: A Nationwide Survey of the Public and its

Leaders on the New Technology and its Consequences for

American Life. December, 1983).

8
67

The public's concern for their privacy rights dramatically

increased during Judge Boric's confirmation hearings. In fact,

the majority of Senators who voted against his confirmation cited

their concern about the Judge's limited view of the

Constitutional right to privacy. A broad-based, bi-partisan

coalition pulled together shortly after the disclosure of the

Boric family's video list to support remedial legislation to

ensure such a thing could never happen again.

The immediate and sustained alarm that many experienced over

the video list disclosure may be explained by our society's

deeply cherished belief that the right to privacy is, as Justice

Brandeis said, "the right to be let alone• the most

comprehensive of rights and the right most valued by.civilized

men." (Olmstead v. U.S.. 277 U.S. 438 (1928), J. Brandeis

dissenting). Our right to privacy is intimately tied to our

sense of individual autonomy• that when we are not committing a

crime, we should be able to live our lives outside of the public

eye. This is particularly true when our activities implicate

both First Amendment and privacy values.

The First Amendment guarantees us our right to publish and

receive ideas. The Fourth Amendment buttresses the right of

citizens to read and acquire information free from governmental

intrusion, a right essential to the free flow of information and

intrinsic to a free and democratic society. The Supreme Court,

in NAACP v. Alabama. 357 U.S. 449 (1958), recognized the severe
chilling effect on First Amendment freedoms that can result from

the unauthorized disclosure of one's personal, political

beliefs. In addition, the Court declared in Stanley v. Georgia.

394 U.S. 557 (1969): "If the First Amendment means anything, it

means that a State has no business telling a man, sitting alone

in his house, what books he may read or what films he may watch."

These precious rights have grown increasingly vulnerable

with the growth of advanced information technology. The new

technologies not only foster more intrusive data collection, but

make possible increased demands for personal, sensitive

information. Private commercial interests want personal

information to better advertise their products. The government is

interested in sensitive information to enhance political

surveillance. And, the intelligence community may be looking at

reading lists to protect our national security. The danger here

is that a watched society is a conformist society, in which

individuals are chilled in their pursuit of ideas and their

willingness to experiment with ideas outside of the mainstream.

Although Judge Bork recently joked about how embarrassed he is to

have the world learn that he watches dull movies, imagine if his

confirmation had been doomed by the revelation of more unsettling

viewing habits.

New technologies enable people to receive and exchange ideas

differently than they did at the time the Bill of Rights was

drafted. Personal papers once stored in our homes are now held

by others with whom we do business. Transactional information

10
may be easily stored and accessed. Records of our reading and

viewing histories are now maintained by libraries, and cable

television and video companies. The computer makes possible the

instant assembly of this information.

The ACLU is concerned about the danger posed by the

aggregation of separately compiled lists to create profiles on

individuals. As Arthur Miller, author of Assault on Privacy.

testified in 1971:

Whenever an American travels on a commercial airline,

reserves a room at one of the national hotel chains, rents a

car, he [or she] is likely to leave distinctive electronic

tracks in the memory of a computer that can tell a great

deal about his [or her] activities, movements, habits and

associations. Unfortunately, few people seem to appreciate

the fact that modern technology is capable of monitoring,

centralizing, and evaluating these electronic entries, no

matter how numerous they may be, making credible the fear

that many Americans have of a womb-to-tomb dossier on each

of us. {Federal Data Banks. Computers and the Bill of

Rights. Hearings Before the Subcommittee on Constitutional

Rights, Committee on the Judiciary, 2/23/71, p. 9)

That same year, Alan Westin, in his book Data Banks in a Free

Society, argued: "We have seen that most large-scale record

systems in this country are not yet operating with rules about

privacy, confidentiality, and due process that reflect the

updated constitutional ideals and new social values that have

been developing over the past decade." (p. 398). The Supreme

Court, echoing these concerns in Whalen v. Roe. 429 U.S. 589

(1977), recognized:

the threat to privacy implicit in the accumulation of vast

amounts of personal information in computerized data banks

or other massive government files....The right to collect

and use such data for public purposes is typically

accompanied by a concomitant statutory or regulatory duty

11
70

to avoid unwarranted disclosures. [We] recognize that in

some instances that duty arguably has its roots in the

Constitution.

The Supreme Court, however, has been reluctant to expand the

scope of the Fourth Amendment to hold that the Constitutional

right to be secure in one's paper's and effects should extend to

personal information held by others. U.S. v. Miller. 425 0.S.

435 (1976). Fortunately, Congress has responded to this pressing

need, acting quickly when First and Fourth Amendment rights have

intersected to establish assertible privacy interests: in the

press offices and files of newspapers (Privacy Protection Act of

1980, 42 u.s.c. 2000(a)(a)); in individual's cable viewing

records (Cable Communications Policy Act, P.L. 98-549); and in

electronic communications (Electronic Communications Privacy Act

of 1984, 18 u.s.c. 2510). The Video and Library Privacy

Protection Acts of 1988 are the most recent Congressional efforts

to address the heart of an important First Amendment/privacy

issue. If passed, the legislation will protect our freedom to

think and inquire by creating a substantive zone of privacy

around library and video records.

FEDERAL INFORMATION PRIVACY LEGISLATION

The protection of video and library records is consistent

with the past 18 years of progress in the area of federal

information privacy legislation.

In 1970, Congress passed the Fair Credit Reporting Act (15

D.S.C. I 1681) prohibiting credit and investigation reporting

12
71

agencies that collect, store and sell Information on consumers'

credit worthiness from disclosing records to anyone other than

authorized customers. The Act requires the agencies to make

their records available to the record subject and provides

procedures for correcting inaccurate information. The

legislation created a legal framework in which the reporting

companies could operate and was passed in response to the

public's growing awareness and concern about personal information

maintained by credit reporting bureaus.

Four years later, the Family Educational Rights and Privacy

Act (20 U.S.C. I 1232(g)) was enacted, limiting disclosure of

educational records to third parties. The law requires schools

and colleges to grant students access to their records and

mandates a challenge and correct procedure.

That same year, Congress passed landmark federal privacy

legislation • the Privacy Act of 1974 (5 U.S.C. ( 552a)• to

control the collection, storage, use. and dissemination of

personal information maintained in federal agency record systems.

The passage of the Act came on the heels of the Watergate

scandal, which revealed to the public the extent of the

government's surreptitious information gathering and use. The

founding principles of the Act are derived from the recommended

federal Code of Fair Information Practices developed by the

Department of Health, Education and Welfare and published in

Records. Computers and Rights of Citizens (1973). The major

principles of the Code are: the government shall not maintain

13
72

secret records; individuals must know what files are maintained

on them and how they are used; individuals must be able to

correct and update their files; and most importantly, information

obtained for one purpose may not be used for a different purpose

without the individual's consent. This last principle became the

driving force behind the Privacy Act of 1974 and the legislation

that followed.

The Privacy Act mandated the creation of the Privacy

Protection Study Commission to make a "study of the data banks,

automatic data processing programs, and information systems of

governmental, regional and private organizations, in order to

determine the standards and procedures in force for the

protection of personal information." Based on its findings, the

Commission was to recommend additional legislation necessary to

protect individuals' personal privacy interests.

In its 1977 report, Personal Privacy in an Information

Society, the Commission concluded that an effective national

information policy must embody three major principles: minimize

intrusiveness, maximize fairness and create legitimate,

enforceable expectations of confidentiality, (pp. 13-21). The

report outlined the need to protect a wide variety of records,

including insurance, financial, telephone, employment, education,

taxpayer and medical records. As a general rule, the Commission

recommended, organizations that maintain a confidential record

must be placed under a legal duty not to disclose the record

without the consent of the individual, except in certain limited

14
73

circumstances, such as pursuant to a search warrant or subpoena.

Even in such instances, the individual must have the right to

challenge the court order before disclosure of the record, (pp.

362-63).

The Right to Financial Privacy Act of 1978 (12 U.S.C. 3401),

a Congressional response to U.S. v. Miller and a direct outgrowth

of the Privacy Commission's report, created an assertible privacy

interest in personal financial records. The Act provides

individuals with the right to a notice and challenge procedure

with which investigative agencies must comply before records may

be disclosed.

Congress passed the Privacy Protection Act of 1980 (42

U.S.C. | 2000(a)(a)) to prohibit the government from searching

press offices if no one in the office is suspected of committing

a crime.

In 1982, Congress passed the Debt Collection Act (P.L. 97-

365) requiring federal agencies to provide individuals with due

process protections before an individual's federal debt

information may be referred to a private credit bureau.

The Cable Communications Policy Act (P.L. 98-549), enacted

in 1984, prohibits a cable service from disclosing information

about a subscriber's cable viewing habits without the

individual's consent. The Act requires the service to inform the

subscriber of the nature and use of information collected, and

disclosures that may be made. The cable service must also

provide subscribers access to information maintained on them.

15
74

Two years ago. Congress passed the Electronic Communications

Privacy Act (18 u.s.c. I 2510). The Act amends the federal

wiretap act to prohibit the unauthorized interception and

disclosure of electronic communications made possible by new

technologies, such as cellular phones, electronic mail and

satellite television transmissions. The passage of ECPA was

supported by a number of industry associations, partly due to

concern about public confidence in using the new systems.

Legislation is currently pending to bring under the wing of

the 1974 Privacy Act the computerized matching of personal

information held in federal agency databases. For years, the

computerized matching of records has grown outside the scope of

government regulation and oversight. The legislation, the

computer Matching and Privacy Protection Act of 1988, passed the

Senate last year by unanimous consent and was recently reported

out of the House Government Operations Committee. The ACLU is

optimistic that the legislation will pass, and that the gaping

hole created by the misinterpretation and misapplication of the

Privacy Act's routine use exemption will be partially covered.

The legislation before us today promises to be another

positive Congressional response to the need for protections on

personal, sensitive information.

CONCLUSION

The ACLU is hopeful that the Video and Library Privacy

Protection Act will continue to garner broad, bi-partisan

16
75

support. We look forward to continuing to work closely with you

to ensure passage of this important and timely legislation.

pc #2

vidtest

17
76

Mr. KASTENMEIER. Thank you, Ms. Goldman.

Now we would like to call on Mr. Vans Stevenson.

Mr. STEVENSON. Mr. Chairman, and members of the committee, I

appreciate the invitation and opportunity to appear before you

today.

I am Vans Stevenson, Director of Public Relations, Erol's, Inc. As

many of you know, we are a suburban based Washington, DC,

video sales and rental chain and we have 165 stores in eight States

and the District of Columbia. In addition to speaking for my company, I am also appearing on behalf of the Video Software Dealers

Association, which represents video retailers and distributors

throughout the United States. Approximately 20,000 of the 30,000

video retailers in the United States are represented by VSDA.

We would like to commend you, Mr. Leahy, Mr. Simon, Mr. Kastenmeier and Mr. McCandless and your staffs for the hard work

that you went through to put together this important legislation.

We support both bills. We support H.R. 4947 and S. 2361, which

would prohibit the disclosure of individual customer rental or sales

records, except in very limited circumstances. In our view, rental

and sales records are privileged matters between the retailer and

the customer. That is the firm policy of VSDA and its members.

We also agree that there should be certain exceptions to the rule

against disclosure of such records.

First, we feel that an exception is appropriate when it is necessary in the routine course of business, such as when a delinquent

account may require the involvement of a collection agency.

Second, we believe that disclosure is warranted where provided

pursuant to a legal court order for law enforcement purposes. However, this law enforcement exception should be limited; it should be

available only when the law enforcement agency has sufficiently

showed its necessity, and when the customer is given notice and afforded an opportunity to appear and contest such an order.

As for requests made in the context of civil litigation, we recommend the approach in H.R. 4947. Disclosure should not be permitted.

Third, disclosure should also be allowed when a customer has

clearly expressed written, informed consent. This could be either

when the customer fully understands the exact circumstances in

which the records are being requested, or when the customer's

name and address will merely be disclosed as part of a general

mailing list. We agree that this mailing list exception should not be

used if the subject matter of a customer's rental would be indirectly revealed.

Erol's, my company, which is the nation's largest volume specialty retailer, has had a policy for a number of years prohibiting individual account disclosure. Any Erol's employee who violates that

policy faces disciplinary action which could include immediate termination. Fortunately, we have never had to dismiss an employee

for violating the policy.

In addition to strengthening our existing policy, it is our expectation that your committees will provide both courts and video retaili*h guidance in the legislative history as to what kinds of acailers might take to safeguard the privacy of video records,
77

so that they may avoid being unreasonably burdened by the legislation.

The Committee report can provide such guidance. We feel strongly that a video dealer should not be unfairly held liable for the unauthorized acts of an employee which are in clear violation of a

strong and enforced store policy against such authorized disclosure.

The legislation is needed. I am aware of at least three instances

when Erol's has received direct inquiries about individual accounts.

Two were from Government agencies, and one from an attorney

representing a client in a divorce proceeding.

1. A United States Secret Service agent asked if we could release

information about an individual suspected of passing counterfeit

currency. We refused unless ordered by a court of law. We never

received such an order or a further inquiry.

2. An investigator from the United States Department of Housing and Urban Development requested account information regarding a Government employee suspected of using a Government vehicle for personal use during work hours. The HUD official said he

suspected the employee was checking out tapes at one of our stores

during working hours. We refused the request for information.

There was never any followup call.

3. An attorney in a divorce proceeding requested the rental

records of the defendant in the case. We refused. A subpoena was

threatened but never served.

Mr. LEAHY. Did the attorney give any reason of why that would

be valid, of what his reason was for wanting it?

Mr. STEVENSON. He never gave me any reason. He asked if the

individual was a member, which we don't disclose either, and,

number two, if the record was available. I asked him why and he

didn't really make any comment and he said I will be back to you.

and we haven't heard anything.

Mr. LEAHY. Thank you.

Thank you, Mr. Chairman.

Mr. STEVENSON. Let me review several other instances that we

are aware of, and this is from around the country.

An attempt by the attorney for a spouse in a divorce proceeding

to show, through video records that the other spouse was an unfit

parent. The records were refused.

A subpoena served by the attorney of one defendant in criminal

prosecution who sought the video records of is client's co-defendants. The store did not comply with the subpoena. The attorney did

not pursue the matter and the co-defendants were acquitted.

A law enforcement agency subpoena seeking from a video store

the video records of all of its customers, in the context of a question about local community standards for an obscenity prosecution.

Here again, the records were refused and the subpoena was not

passed.

Record sought by a defendant in a civil child molestation case,

who sought to show that plaintiffs themselves had stimulated the

children's fantasies by virtue of the movies shown in the home.

As you have pointed out, there have been attempts reported in

the press to obtain the video records of public figures, such as Government officials.
78

These incidents suffice to put the Congress on notice about this

serious potential for invasion of privacy and chilling of the exercise

of the First Amendment right to view films free from fear of harassment or adverse publicity. Many State and local laws do not

provide adequate protection. Congress should act.

While the attempts to obtain customer records were successfully

rebuffed in the instances I have referred to, there is always the

threat of efforts to judicially enforce subpoenas seeking disclosure.

Home video dealers should not have to face potential liability for

failure to comply with a subpoena, on the one hand, or lawsuits by

their customers because they have complied, on the other hand.

Because we feel strongly about protecting the privacy of our customers and upholding the law, we are also concerned about consistency between Federal and State legislation currently in effect. As

video dealers, we would like clear guidance as to which legal requirement would apply in case of conflicting standards.

We applaud the proposed bills to formally protect a reasonable

right of privacy for the video customer. We believe that the legislation will help to strengthen our company's policy as well as similar

policies practiced by the other video retailers in VSDA.

Thank you again, Mr. Chairman and members of the committee

for the opportunity to speak to you today on behalf of both Erol's,

Inc., and the Video Software Dealers Association.

I will be pleased to answer any questions you may have.

Mr. KASTENMEIER. Thank you very much, Mr. Stevenson.

[The statement of Mr. Stevenson follows:]

SUMMARY OF

TESTIMONY OF VANS STEVENSON

FOR THE

VIDEO SOFTWARE DEALERS ASSOCIATION AND EROL'S, INC.

ON

HOME VIDEO RECORD PRIVACY LEGISLATION

August 3, 1988
79

SOMMART

The Video Software Dealers Association is the largest

national trade association for retail home video dealers and

video distributors. Its members operate some 20,000 of the

30,000 home video retail outlets in the country.

EROL'S, Inc., is a suburban Washington, D.C.-based

video sale and rental retail chain with 165 stores in nine

states and the District of Columbia.

VSDA and its members, including EROL'S, believe that

the privacy of their customers' video records should be

respected and preserved, except for very narrowly drawn

statutory exemptions. That is VSDA's policy and we generally

support legislative efforts to reinforce that policy,

including the two bills before your subcommittees.

We agree that there should be carefully drawn

exceptions for disclosure in the case of customer consent,

ordinary business practice, or a strong showing that it is

essential in a law enforcement proceeding.

It is our understanding that your committees will

provide some guidance to the courts and to video retailers

regarding the steps that retailers might take to safeguard

record privacy.

The pattern of requests for records, through

subpoenas in criminal or civil proceedings and from

journalistic inquiries, indicates the need for Congressional

action. The trend toward increased efforts at disclosure

puts Congress on notice about the serious potential for

invasion of privacy and chilling of the exercise of First

Amendment rights.

Video dealers should not have to face potential

liability for failure to comply with a subpoena, on the one

hand, or lawsuits brought by customers because they have

complied, on the other.

The proposed legislation will strengthen the policy

practiced by VSDA dealers of maintaining customer privacy,

and thereby protect the free exercise of First Amendment

rights.
80

TESTIMONY OF VANS STEVENSON

FOR THE

VIDEO SOFTWARE DEALERS ASSOCIATION AND EROL'S, INC.

BEFORE

THE COMMITTEE ON COURTS, CIVIL LIBERTIES

AND THE ADMINISTRATION OF JUSTICE

JUDICIARY COMMITTEE

U.S. HOUSE OF REPRESENTATIVES

AND

THE SUBCOMMITTEE ON TECHNOLOGY AND THE LAW

JUDICIARY COMMITTEE

U.S. SENATE

ON

HOME VIDEO RECORD PRIVACY LEGISLATION

August 3, 1988
81

H.R. 4947

VIDEO PRIVACY PROTECTION ACT

DRAFT TESTIMONY

Mr. Chairman and Members of the Committee, thank you

for the invitation and opportunity to appear before you

today. My name is Vans Stevenson. I am Director of Public

Relations for EROL'S, Inc., a suburban Washington, D.C.-based

video sale and rental retail chain with 165 stores in nine

states and the District of Columbia. In addition to speaking

for my company, I am also appearing on behalf of the Video

Software Dealers' Association, which represents video

retailers and distributors throughout the United States.

Approximately 20,000 of the 30,000 video retailers in the

United States are represented by VSDA.

We support H.R. 4947 and S. 2361, which would

prohibit the disclosure of individual customer rental or

sales records, except in very limited circumstances. In our

view, rental and sales records are privileged matters between

the retailer and the customer. That is the firm policy of

VSDA and its members.

We also agree that there should be certain exceptions

to the rule against disclosure of such records.

First, we feel that an exception is appropriate when

it is necessary in the routine course of business, such as

when a delinquent account may require the involvement of a

collection agency.
82

Second, we believe that disclosure is warranted where

provided pursuant to a legal court order for law enforcement

purposes. However, this law enforcement exception should be

limited; it should be available only when the law enforcement

agency has sufficiently showed its necessity, and when the

customer is given notice and afforded an opportunity to

appear and contest such an order.

A potential problem in the bill's exception for

criminal law enforcement lies in the bill's requirement that

the user be "given notice and afforded an opportunity to

appear and contest such order." See S 2710(d)(1)(A). The

bill does not designate who is responsible for giving the

notice to the customer. It is important that the law

enforcement agency have that responsibility so that the

dealer does not become involved in any conflict between the

user's privacy rights and the law enforcement agency's

alleged need for disclosure.

As for requests made in the context of civil

litigation, we recommend the approach in H.R. 4947.

Disclosure should not be permitted.

Third, disclosure should also be allowed when a

customer has clearly expressed written, informed consent.

This could be either when the customer fully understands the

exact circumstances in which the records are being requested,
83

or when the customer's name and address will merely be

disclosed as part of a general mailing list. We agree that

this mailing list exception should not be used if the subject

matter of a customer's rental would be indirectly revealed.

EROL'S, which is the nation's largest volume

specialty retailer, has had a policy for a number of years

prohibiting individual account disclosure. Any EROL'S

employee who violates that policy faces disciplinary action

which could include immediate termination. We have never had

to dismiss an employee for violating the policy.

In addition to strengthening our existing policy, it

is our expectation that your committees will provide both

courts and video retailers with guidance in the legislative

history as to what kinds of actions retailers might take to

safeguard the privacy of video records, so that they may

avoid being unreasonably burdened by the legislation. The

Committee Report can provide such guidance. We feel strongly

that a video dealer should not be unfairly held liable for

the unauthorized acts of an employee which are in clear

violation of a strong and enforced store policy against such

authorized disclosure.

The legislation is needed. I am aware of at least

three instances when EROL'S has received direct inquiries

about individual accounts. Two were from government

- 3 -
84

agencies, and one from an attorney representing a client in a

divorce proceeding.

1. A United States Secret Service agent asked if we

could release information about an individual suspected of

passing counterfeit currency. We refused unless ordered by a

court of law. We never received such an order or a further

inquiry.

2. An investigator from the United States

Department of Housing and Urban Development requested account

information regarding a government employee suspected of

using a government vehicle for personal use during work

hours. The HUD official said he suspected the employee was

checking out tapes at one of our stores during working hours.

We refused the request for information.

3. An attorney in a divorce proceeding requested

the rental records of the defendant in the case. We refused.

A subpoena was threatened but never served.

Other home video retail businesses have encountered

similar inquiries. These instances of efforts to obtain

video store records include:

An attempt by the attorney for a spouse in a

divorce proceeding to show, through video

records that the other spouse was an unfit

parent. The records were refused.

- 4 -
85

• A subpoena served by the attorney of one

defendant in criminal prosecution who sought the

video records of his client's co-defendants.

The store did not comply with the subpoena. The

attorney did not pursue the matter and the codefendants were acquitted.

• A law enforcement agency subpoena seeking from a

video store the video records of all of its

customers, in the context of a question about

local community standards for an obscenity

prosecution. Here again, the records were

refused and the subpoena was not pressed.

• Records sought by a defendant in a civil child

molestation case, who sought to show that

plaintiffs themselves had stimulated the

childrens' fantasies by virtue of the movies

shown in the home.

There have also been attempts reported in the press

to obtain the video records of public figures, such as

government officials.

These incidents suffice to put the Congress on notice

about this serious potential for invasion of privacy and

chilling of the exercise of the first amendment right to view

films free from fear of harassment or adverse publicity.

- 5 -
86

Many state and local laws do not provide adequate protection.

Congress should act.

While the attempts to obtain customer records were

successfully rebuffed in the instances I have referred to,

there is always the threat of efforts to judically enforce

subpoenas seeking disclosure. Home video dealers should not

have to face potential liability for failure to comply with a

subpoena, on the one hand, or lawsuits by their customers

because they have complied, on the other hand.

Because we feel strongly about protecting the privacy

of our customers and upholding the law, we are also concerned

about consistency between federal and state legislation

currently in effect. As video dealers, we would like clear

guidance as to which legal requirement would apply in case of

conflicting standards.

We applaud the proposed bills to formally protect a

reasonable right of privacy for the video customer. We

believe that the legislation will help to strengthen our

company's policy as well as similar policies practiced by the

other video retailers in VSDA.

Thank you again, Mr. Chairman and Members of the

Committee for the opportunity to speak to you today on behalf

of both EROL'S, Inc. and the Video Software Dealers

Association.

I will be pleased to answer any questions you may

have.

6 -
87

Mr. KASTENMEIER. Mr. Richard Barton.

Mr. BARTON. Mr. Chairman, and I

Mr. KASTENMEIER. Incidentally, without objection, your statements collectively will appear in their entirety as submitted to the

committee, even if you have summarized your remarks.

Mr. BARTON [continuing]. Mr. Chairman, and members of the two

subcommittees, it is real pleasure to be here today. I hope I can say

this after the testimony, since you know, I am going to take a little

bit different tack than the other witnesses here.

Before I begin, I would like the indulgence of the subcommittee

to introduce a very prominent person in our industry, Alexander

Hoffman, who is sitting right over here. He is the recently retired

group vice-president of Doubleday, Incorporated and former Chairman of the Direct Marketing Association. He was one of the spearheads of the Direct Marketing Association's activities in the privacy area in connection with the Privacy Protection Study Commission, and afterwards, which I think dramatizes that we are very

concerned about the privacy issues raised here and about the general concerns of the American public in privacy.

We want to cooperate with the subcommittees, and we have been

working with the staffs. We are very concerned about the privacy

issues that have been raised here by the other three witnesses, and

we agree that the specific instances which they cite in most cases

are things that should be prevented either by law or certainly by

practice within their industries.

We do not agree that Judge Bork's personal preferences for video

tapes should have been released. We do not agree that specific

titles and reading habits of specific individuals should be released

from libraries. But this bill, we believe, goes far beyond remedying

the ills which gave rise to the original bills.

The language of the two bills would actually have a significant

impact on what heretofore has been considered the completely legitimate and accepted marketing practice of a major segment of

American industry. That is the direct marking industry. We believe that the bills misunderstand or really don t address the question of how mailing lists are used and how mailing lists are put together, in fact, even physically what mailing lists are.

Mailing lists as such do not contain specific data about specific

individuals. They are lists, they are aggregates of people, usually

on computer tape which we don't even see who may have common

characteristics such as income, buying patterns, places where they

live, life style and what is important here for the subject matter of

this hearing, either vocational or avocational interests which indicate that they might be receptive to receiving a specific offer or

contributing to a specific charity or for that matter supporting of

specific political candidate.

Companies, we agree, do have the knowledge of specific buying

habits of their customers in the same way that Erol's does and the

same way libraries do, but this is not translated onto a mailing list.

The only physical manifestation that comes out of the mailing lists

is a piece of paper with a name and address on it that goes on an

envelope or a catalog.

There is no specific information which is given out by a mailing

list. To make an important point, there is no complaint that I
88

know of, at least in the history of the Direct Marketing Association

involvement in issues like this, that specific information about specific individuals has been given out from the mailing lists and for

mailings.

In 1977 the Privacy Protection Study Commission which was

cited by the ACLU favorably, maybe not this part of it, but other

parts, agreed with the industry, the compilation and use of mailing

lists did not invade anyone's privacy and should not be legislated

against.

But even before the Privacy Protection Study Commission, in

1971, the Direct Marketing Association realizing people's growing

concerns about privacy, developed an industry-wide mail preference service, administered even to this day by the Direct Marketing Association to allow people to get off mailing lists.

We have advertised that program very, very broadly throughout

the country with hundreds of millions of impressions of advertisements in magazines and newspapers and dealing with people like

Action Line editors and consumer groups.

It has been endorsed by organizations such as U.S. Office of Consumer Affairs and the National Council of Better Business Bureaus. We also began at that time another successful program to

insist that companies which rent their lists give the customers an

opportunity to have their names deleted.

We believe fervently in that principle and that is recognized in

the two bills that are being considered before us today. So we do

believe that people should have the opportunity to get off of a mailing list. We promote that nationally. But we do not believe that

mailing lists and the use of mailing lists per se is a violation of

anyone's privacy rights. There is some specific language I would

like to approach in both bills that gave us great difficulty.

First, the current language in both, I believe, prohibits any disclosure which would directly or indirectly disclose the character of

the video tape rented. As I said before, it has generally been understood that there is no harm in the commercial use of the character

of the material rented on a mailing list.

It doesn't invade somebody's privacy to put the person on a mailing list because he may have or she may have rented classic westerns or video tapes about workouts or whatever. Pick a subject. Especially when the individual has the power to stop such rental if he

or she chooses.

If he ran a golf video club list or a sailing list, you can make a

fairly safe assumption that that person on the list has interests in

those specific matters. We think it is legitimate to market to these

people, but the effect of this legislation would be to prohibit the use

of these lists unless affirmative consent of the consumer is obtained, which frankly is tantamount to prohibition for use of these

lists.

Therefore, under the proposed legislation a general list can be

rented, but a list that indicates their interests, at least as far as

video tapes are concerned, can't or at least practically can't be. As

I said, it has been generally established that there is very•no real

privacy interest in renting the names of customers and their general interests.
89

Finally, we are concerned with the requirement in the House bill

which requires a person to check a yes box and return it to the

direct marketing company before his name be•may appear on the

list. We are in the business of marketing our products and services.

Studies have shown that non-sales related information in separate notices and things of that nature significantly decreases response. It is not that we don't want to do this. We will do it and we

have included in our testimony, many, many examples of many

companies, public interest organizations such as consumers union

and the American Express, which is mentioned here, which give

people this opportunity.

But the Privacy Protection Study Commission itself recognized

there is a great deal of diversity in the direct marketing business

and there is•there should be flexibility in how we provide the

notice. We would like that kind of flexibility.

In closing, I think that just two thoughts here, three thoughts, I

guess. One is we do think that this bill should be limited to the

evils which everybody described, which deal with libraries and in

this specific case revealing of information from the rental of video

tapes from retail stores.

Secondly, we do not believe that the simple existence of a mailing list and mailing to customers because of particular interests

they may have violates privacy. And, third, we would like to have

the flexibility within the context of the bill in order to be able to

rent our specialty lists. We want to sincerely and strongly thank

the two subcommittees for hearing this testimony, and we are looking forward to working with you in the future, as we have in the

past on issues of great concern to us all.

Thank you.

Mr. KASTENMEIER. Thank you very much, Mr. Barton. Your remarks conclude the prepared testimony.

[The statement of Mr. Barton follows:]
90

Before the

UNITED STATES HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES

AND THE ADMINISTRATION OF JUSTICE

and

UNITED STATES SENATE

COMMITTEE ON THE JUDICIARY

SUBCOMMITTEE ON TECHNOLOGY AND THE LAW

TESTIMONY OF

RICHARD A. BARTON

Senior Vice President

Government Affairs

DIRECT MARKETING ASSOCIATION

August 3, 1988

Contact: Richard Barton

(202) 347-1222

Ronald Plesser

(202) 861-3969
91

SUMMARY OF TESTIMONY OF RICHARD A. BARTON

The Direct Marketing Association ("DMA") has been

carefully following the Video and Library Privacy Protection

Act of 1988 and agree that the public disclosure of Robert

Bork's video rental choices should not have been made. It is

our hope that we can support a legislative remedy to that

problem. However, it is with much regret that I have to say

that given its current coverage of direct marketing, DMA and

its members will have to oppose this legislation.

The direct marketing industry shares this committee's

concern that personal privacy be protected in the use of video

customer information lists and pledges that our industry will

continue its successful seventeen year effort to further the

privacy interests of our customers. DMA started its privacy

efforts in 1972 and has spent much time, money and effort to

inform the public of its mail preference system. We believe

that as the result of these efforts and the notices placed in

consumer material by most marketers that the public is aware of

its ability to restrict the use of names for marketing

purposes.

In summary, we contend, however, in the context of

video that this legislation should be limited to retail rental

establishments. Further, we believe that any person renting or

exchanging a mailing list should be able to describe the

character or the nature of the video rented, e.g. sports video

as long as the customer is given the opportunity to object to

the sale or exchange of the customer's name.
92

TESTIMONY

Good morning, my name is Richard A. Barton, and I am

Senior Vice President of the Direct Marketing Association

responsible for government relations. DMA has been carefully

following the Video and Library Privacy Protection Act of 1988

and agree that the public disclosure of Judge Robert Bork's

video rental choices should not have been made. It is our hope

that we can support a legislative remedy to that problem.

However, it is with much regret that I have to say that given

its current coverage of direct marketing, DMA and its members

will have to oppose this legislation.

As currently drafted, this legislation adversely

affects the direct marketer's most important business asset:

the mailing list. There is no evidence that direct marketing

companies have done what was done to Judge Bork or anything

else adverse to its customers. We do not publicly disclose

information about what a person buys. We have a 17-year-old

system in place whereby customers may have their names removed

from our lists. I will discuss this system in a moment. We do

not feel that our legitimate commercial activities need to be

regulated by a bill whose purpose it is to protect consumers

from an abuse which we have not committed.

The direct marketing industry shares this committee's

concern that personal privacy be protected in the use of video

customer information and pledges that our industry will
- 2 -

continue its successful seventeen year effort to further the

privacy interests of our customers. DMA started its privacy

efforts in 1972 and has spent much time, money and effort to

infc.m the public of its mail preference system. We believe

that as the result of these efforts and the notices placed in

consumer material by most marketers that the public is aware of

its ability to restrict the use of names for marketing

purposes. This process of name removal or Mail Preference

Service ("MPS") has been endorsed by the President's Office of

Consumer Affairs, the Better Business Bureau and consumer

officials in many states. Most of our members have their own

MPS services. Examples of how these companies notify their

customers of how to have their names removed from lists are

attached to my testimony.

In summary, we contend, however, in the context of

video, that this legislation should be limited to retail rental

establishments. Further, we believe that any person renting or

exchanging a mailing list should be able to describe the

character or the nature of the video rented, e.g. sports video

as long as the customer is given the opportunity to object to

the exchange or rental of the customer's name.

DMA has nearly 3000 member firms nationwide which

represent every functional level of industry • manufacturing,

wholesale and retail. These companies market goods and

services through direct response methods, including direct mail
94

advertising and mailing lists. As a measure of direct

marketing's economic importance and consumer acceptance,

consumer sales volume from catalogs alone are estimated to be

in the tens of billions of dollars. The direct marketing

industry makes a major economic impact through increased sales

of goods and services. In addition, the direct marketing

industry itself is a major contributor to increased employment.

Video tapes are emerging as a major element of the

marketing business. The new traditional video tape version of

movies are being sold through the mail as well as educational

and instructional material. Everything from exercising to

cooking to gardening to entertainment is finding its way onto

videotape. A rapidly growing amount of all video tapes in the

United States are sold directly to consumers through the mail.

Privacy is not a new concept to the direct marketing

industry. We not only protect our customers against

unauthorized disclosures, we give them an opportunity to

restrict our members from renting or exchanging their names.

Typically, a direct marketer as shown in the attached examples

will notify its customers that mailing lists containing their

names and addresses may be exchanged or rented and they are

given the opportunity to limit or restrict such disclosure. In

addition, through mail preference a consumer may contact DMA

and we will distribute their names to any list marketer or

broker who requests it, including members and non-members, who

in return will eliminate those consumers names from any

solicitations that they make.
95

A -

Video mailing lists rented or exchanged do not contain

a list of titles purchased. They simply state how many times

an individual purchased through the mail in a preceding time

period. In some instances the lists may indicate a subject

preference, e.g. sports. There is no doubt that direct

marketing companies, like retail stores, know what a customer

has purchased. And there is no doubt that direct marketing

companies use this information in an attempt to increase

sales. Companies in our industry want to know about a person's

interest to be better able to market products to that person.

If you are a hiker, changes are you would be interested in a

catalogue selling camping or fly fishing equipment. If you are

a gardener, you might want to buy bulbs or seed. If you are a

handyman, you might want to buy more tools. And if you watch

videos at home on your VCR, you might want to buy more

videos...or home electronics...or books. These lists are

closely controlled and they are used only for marketing

purpose. They cannot be accessed over the counter and are

maintained with a high degree of security.

In contrast, a video store primarily rents video

entertainment films. As a result they keep a more detailed

record of an individual to protect themselves in case the

customer does not return the videos. It was these rental

records which were released for non-marketing purposes in Mr.

Bork's case.
%

- 5

In terms of unauthorized access to the name and habits

of our customers, we simply are unaware of any instance, even

an isolated one, where a name of a direct market consumer has

found its way any place except onto a mailing label back to

consumers. We do not believe that this practice of list rental

and exchange raises privacy issues. Others after looking at

this issue including the U.S. Privacy Protection Study

Commission have concluded that receiving mail in itself does

not raise privacy concerns.

In July of 1977, some five years after we began our own

effort, the United States Privacy Protection Study Commission

issued the most comprehensive report ever done in this country

on privacy. It studied the direct marketing industry

extensively and concluded that:

That a person engaged in interstate

commerce who maintains a mailing list

should not be required by law to remove

an individual's name and address from

such a list upon request of that

individual, except as already provided

by law.

The Commission went on to state however, that an

organization should afford its customers the opportunity to

restrict the use of their names. The Commission believed that

a voluntary approach would be successful. We believe that our

MPS system and those of our individual members have been very

successful and that the direct marketing industry has protected

its customers from the very abuses which prompted this

legislation.
97

The proposed legislation covers direct marketers as

well as retail stores on the theory that the disclosure of

video tape selections is a practice that warrants legislative

protection and if it is warranted for retail stores than the

same restrictions should apply to anyone who distributes video

tapes to consumers by other means. This we believe is bad

privacy theory.

The Privacy Commission and subsequent legislative

activities in the privacy arena all focus on the relationship

between the record keeper and the subject of that record.

Congress in 1984 as part of a cable reform package included a

cable subscriber privacy section because of the concern that it

had at that time with the developing central role of a cable

company. Not only could a cable operator learn of you movie

selections, it could discover when during the day or night you

watched that movie. Congress acted on its concern that the

cable operator was a new institution with no established track

record of protecting consumer's privacy rights. Also, the cable

industry sought the legislation.

More recently, in landmark legislation, both of these

subcommittees passed the Electronic Communications Privacy

Act. That statute recognizes the special role of remote

computing services in our society and established very strong

requirements concerning the release of information from such

services. Also, the remote computing industry sought the

legislation.
98

- 7 -

Here the video store industry has sought this

legislation in light of the publicity resulting from the

unauthorized disclosure of Judge Bork's records. The library

community has also sought legislation because of the abuse of

their libraries by law enforcement officials through library

awareness programs.

In stark contrast, there is no record to support any

legislative action directly affecting direct marketing. Given

the industry's unblemished seventeen year history of compliance

with privacy guestions, we seriously question the need to

legislate our business. We strongly request that we be given

the continued opportunity to respond voluntarily to the

challenge of privacy.

Moreover, this legislation is also too restrictive in

terms of its limitation on the sale or rental of mailing lists

where the individual has been notified that his or her name may

be rented. The current language prohibits any disclosure which

would directly or indirectly disclose the character of the

video tape rented. We agree that this alternative consent

procedure should not be used to disclose the specific titles

rented. We do not see the harm in the commercial use of the

character of the material rented. It does not invade someone's

privacy to find out that he or she has rented classic movies or

westerns, especially when the individual has the power to stop

such disclosure if he or she chooses.
99

This indirect and direct language is also troubling

where the list is a specialty list. If you rent a golf video

club list or the sailing club video tape list, you can make a

fairly safe assumption as to the character of the video tape

rented. The effect of this legislation will to prohibit the use

of these lists unless the affirmative consent of the customer

is obtained, which is tantamount to a prohibition on the

disclosure of such lists. Therefore, under the proposed

legislation, a general list may be rented but a specialty list

may not. We do not see the privacy interest in renting the

name of customers and their general interest as long as they

have been given the opportunity through alternative consent to

stop disclosure of their names in the first place.

Finally, we are extremely concerned with the

requirement in the House bill which requires a person to check

a "yes" box and return it to the direct marketing company

before his or her name may appear on a list. Direct marketing

companies are doing just that...marketing products and/or

services to consumers. Any card or notice which is to be

filled out by a potential customer is very carefully designed

to promote sales. Studies have shown that non-sales related

information significantly decreases response.

This argument was made to the Privacy Commission some

ten years ago and they too agreed that the direct marketing

industry is very diverse and what may work in one context may
100

- 9

not work in another. Therefore, the Privacy Commission

recommended flexibility in how notice and opportunity are

given. Requiring a box, is we believe, an unnecessarily

specific requirement to be assured that a customer has been

given adequate notice. We have attached many examples of mail

preference notices and we believe that the variety of

approaches demonstrated by those notices should be continued.

We also believe that our industry is the beneficiary of

the First Amendment and the developing commercial free speech

doctrines of the U.S. Constitution. We will not detail those

arguments now, but simply state our interest for the record.

We continue to support the efforts of these Committees

in connection with privacy and look forward to your continued

work. Thank you for the opportunity to testify on these

important issues.
101

!••-_-_-.

Moving?

lOlh.r

I •ubtcrlpj tlon quti-

' llont?

Subscribe to

Consumer Reports

D New Subscription

D Renewal <m«e»i taanat Ittxi)

O Change of Address

WPraprW* bmt. AIM 6 to • 1Mb tar n* Ant luu«

OarMi tod MMt BMM KM MJO »»par.

OlnJU •»»•«•.«« G>>acs.l34

•ndowrJ DMM

J Crty .

MAIL TO: Cw»unt«t Aaporu. PO tat 1949, M«noo. OtW) 433«

Galbraith on economics

Wnnen as • conversation b*t>wen the eminent

•conomrst John Kenneth GtJbmth and journalist

Nico*e Salinger th« book sparklet with examples

of how ecooom.cs can fe explained dearly and

•impry Their dialogue covert such topes M

the economy. inflation. uoerTiplovmamt. the oil

crisis the rnartuttpuK* and more

11 you have a blind soot when it comet to

economic*, here is an msormatrve and enjoyable

book mat ilrumir«t«s me subject

ALMOST EVERYONE S GUIDE TO ECONOMICS

by John Kenneth Galbraith

and Nicole Salinger 1078 162 pages

CU paperbound. IS

TO ORDER. USE COUPON ON PAGE 153

CU EXCHANGES LISTS of confc.uu. reborns subscribers tor •

ad publishers and nonpront rxganaatton*. Tha exchange raduoaa our t

us to offer tammm pvom to paopls we might otherwise ba unabla to reach Our

poSey Is to offer subscribers tha opportunity to dalata hair names from any Ssts so

exctusnged.

V YOU PREFER NOT to receive promotional materta. from puMcatton* or organUattons with which MBSravoan may exxfkange mailing lets, anaoh t>w, meaesg fa^

(on tha bac* cover) to thai notice, or •In the form below Ptaaaa copy your name and

address exactly as It appeara on the maJSng label. Mai to Rhode H. Karpotaln. ExecuOrector Coravuma-a Union. P.O. Box 1S48. Marlon, Ohio 43309. Or aend a letter

wm

eo_

STATE

UPMl AM I. • you don't

eb|aot to reosMng such

malarial, you need do

Disability Insurance

Continued from pep* '•?*

Another rider deserving consideration

U the so-called option to punnaae. As to

Dane implies, R fives you tbe right (but

Dot the obligation! to buy more Insurant*

In tbe lutura, usually In specified

amounts at specified intervals, regardless

of changes In your health The price L

usually based on your age at Use time of

each additional purchase

Coti-of-ltvknf, riden may also have appeal for some buyers These adjust your

benefits according to some measure of

Inflation, often the CaMessssse Price Index There Is usually a limit to the adjustments, both per year (such as 5 percent a

year) and In total (such as a 100 percent

maximum Increase In coverage). Benefits

may be adjusted automatically each year

either from the time the policy is purchased or from the time you art disabled

The Rating} indicate a few policies that

have socne type of cost-of living increase

built into the basic policy.

Recommendations

CL'i Ratings are a basic framework for

your own comparison-shopping but are

not a substitute for It, for several reasons.

Premium rates will vary, depending on

your age and the underwriting (risk) class

to which you're assigned CD's data were

gathered several months ago, and some

rates may have changed since then. Most

Importantly, new policies, some of them

Innovative and attractive, continue to

come onto tbe market.

Of tbe 27 policies CU examined, our

clear preference goes to Use Cuaniian

NC7S-A. Its provisions uniformly met

CtTs criteria for top ranking, and while ft

was more expensive than many policies,

to good features outweighed the oost differences, by our measures

People-fee whom cost fa moat important should consider Use fifth-ranked

Connecticut Mutual fVC-63, which did

on ClTs quality measures and was

in estimated cost,

for whom cost fa not an object

to give serious consideration to

uhusciu Mutual DP 186, or one

Mutual policies not

this protect Tbe DP 186 rated

as Use Guardian NC7S-A in

luy and dessnJtloo of disability,

of the other Massachusetts

Mutual policies BBtorposexs as standard

feecures many of the riders we consider

issssfuL

well (

r average a

Corvsumavv Rtpevfs

Tkm Coniumert Union Foundation

funded BW research and writing of shit

report For m/omwjrkm about She foundation, write: Ctffuumcrt Vnton Foundation. Boa RC, 156 Wiuhhu$on St, Vaunt

Vtnton, MX 10550

MARCH ttB3
102

[

FREE - Send The Company Store

Catalog to a Friend.

Plcwc lend i caulcc to:

On -ZipVu' NIIW

GIFT CERTIFICATE

A Company Snrr Gift Cartifkalr c.

ngood taste till o

MAILING PREFERENC

Wr oocxMonaQy makr our cuuomer

1st available ID arrfulK neenrd

ccmptfun who** product* or amour* our

hie) may Mm yaw li you do not wuh

to receive *uch mjnlmp plcjar copy

your iruj• UW exactly and *crd to.

T>* Company Swr

Mail PIMP• Server

WD Company Store Road

La Croat Waconw WO]

Direct Markattng AaMoation

WEEKLY SPECIALS

our weekly tpeoak

CUSTOMER AWARD

V V valur your comment* idea*

^bought*, product design* and

tm.atton W*U pay you SSO for any

^ von havT that we UM in any of »

j catalog* Subrmi your idu •

J to "Customer Awaiu' aftentior

FVwr*en TV Company Store

SOOKompany Store Road La Crow

tSMO)

JCATE MAILING

If you re receiving duplicate, of our

r

G»ulag call our toll 1m number and »

our customer MMMW Or tend u

the mailing label from all of the drier*

catalog! you received from m and

NEW DIET FOR LIVING

Low wri£Tii and Lower yowr chotetterol with ihb unique three-pan health kit, »> jiii

onh mam TV Cornparn Store.

TV ChofeWerol Calorw Clod, *y*tfm wed by thoutandt of

pfiynoart* 10 help their patienlt low weighi and lower

cholesterol, a now available to our custome

a limited time.

Intagme a tkouner, healthier yow'

TV innovative ChoJeuerol Calorie Clock

ivtfrm ahotm you how to eat the right food* «• : • at ihr riphi time* to lot* v*e*hi and tower your / •

cholesterol intake

H B Gift Ofler - Give rhr K>h of apod hearth

with our eaciuMve hnuted-tnne offer on thu

three-part health kit From now until Oinuma*

when you buy three Owrtttrrol /Calorie Clock kit*

for S9.9S each. youTI M a fourth kit absolutely FREE'

Aa our glfi to you. well pay ri

c m

•$?-

• •happing

handling charge Thu uruque giii will be appreciated

* concerned with good healthWhat batter way to

*"* SryWf290*.

OUR PRICE $9.95

»ay you car*'

D
103

!tifllRl>

PLACE

STAMP

HERE

ORVIS 10 UVER ROAD

MANCHESTER. VERMONT 0525±«75«

III ,l.,.l.l.l,l..l,.lll.,.l...ll,l..l,.l.ll•.l

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How to Order By Mail

Uie feincm order blank or my ihca of p*er Beaut ORVIS CATALOG MAILING LIST: If your address is uv

to rpecifyby whom Iheorderts made and to whom you would corred,oryouareir»vtfi(.oryouareiweivuigiTtorerhanoDe

like il shipped Specify cajanbry. catalog Mem number, col- copy at the Bane One, Praia* tend addrewdl oo your

or/iiie/pattern. other information and price Add LV90 for aiMtafbi)*^kyBurkMUiiaiuuin&r4b3&mnlisJaxncm&mwiataddnmtDanajuMnaieeilikbvttyCenMin JlanBS«rt»w*^a»aawia^sJwaiewwr4»»'^^y'yi u i i I ^

heavy/Niiy rums carry an •ddioooal postal v*c^'*^/MjJLniTFXF*C£Sa(V)C£AOr.T>ocasH**tt,n*ta

thould be added Air service It available. For (retails, check/ ao^Kenm' names available to carefully selected crjmpaiues

wrrh the order clerk when youplaceyour order Enclose pay* wvni offers dial may be of iniercmo vou Ifyouprefer ntst to

mens(check.money oeuen or creditcardinformation Pleaal m I|I i milnnafcaji ill |IJ j ilins' ' '

s<|rn your name (No C O D s. stamps or currency) I .^ wjod B Orvis Mad nrtotaxe. 10 River Road. Man

SALES TAX: For deliveries tn CahTonsIa, 6%SoueTa*\ chrslei. Vermont 05254 Or when sou send inanordcr, nuke,

6Vi*uiAUrr«-U,a>orjiCostaaridSanFraiicisooccun6es VjJOU; ol il on your order M.nl -^

For Vermorrl 4% and Dlinori 5* State Tat May we arsxl an Ooli Catalot loa Mersdrrtessds Just fill

INTERNATIONAL ORDERS: Mlnlmurn Order 125 .00. as and mail to: ORVLS. 10 Rber Road. Manchester, Ver

hyirea rj>j« be irwde in US funds (checti payrbk h. • I'S tnorrl 05254

bank), or major credn card Add 30% to merrrsandrsr lota] to Name

cow dcioirrManDcai arvj shipping by air 42" (lOocmltsrhe Address

lersjth Irrnil Caraada Caatonsm: iso length Imsu Add40*ro city/SLZip

arjl ordered Weaess^CarsacianDtay.L>»rnas«»Sale.Tat. | JFiuung/HuMuig Catalogs | laothing/Gifi Catalogt

prokaigc net, MM cturyi too in*uir iauc delivery circci
104

NICOLEXSUMMERS

SHOPPING WITH NICOLE SUMMERS IS EASY!

SHOPPING BY MAIL Just till out me attached order lorm Be

sure to include an the mtcrnation needed make any necessary corrections to the pre-pnnied adress and include your paymenl by check,

money order or credit card (be sure to include all charge card information) Please make checks and money orders payable lo Nicole Summers

SHOPPING BY PHONE You may call in your charge card orders 24

hours a day 7 days a week1 Just call 603-279- 7081 and be sure to have

your catalog and your credit card handy (Filling out the order lorm as a

reference will make your phone ordering easy and last) During regular

business hours ot 8 00AM to 8 00PM weekdays and 9 00AM to 5 00PM

ESI on Saturdays we'll be able to give you persona1 assistance with your

Older At all other times our automatic order taking system will lake your

order in a step-by-step, efficient way (Don't be shy, it's |usl a recorder')

Either way. your order will be processed quickly and accurately to speed

it on its way lo you

DELIVERY TIME We re proud mat we ship most orders within 2 days

ot receipt' Occasionally, though unavoidable delays occur If a delay ol

over 21 days is expected you'll be notified immediately Don't worry it

you've ordered several items, and just one arrives Items ordered together

may not be shipped out at the same lime or in the same carton We ship

most merchandise by United Parcel Service to insure careful handling

and rapid delivery However il you have a PO Box number and no street

address we must ship by Parcel Post

GUARANTEED PRICES Every price in this catalog is guaranteed to

be m effect ufflii ai leasl Dec 31,1987 You'll neve-- be surprised by a

price increase over the published catalog price with N.cole Summers

guawteed prices'

NO ONE HOME DURING THE DAY? It no one is at home to receive a

United Parcel Service delivery, you can plan to have your orde' sent lo

your work address Just fill in the "ship to space on your order form

with the address of your place ot work

QUESTIONS OR PROBLEMS It you ever have a question or a problem concerning an order you've placed, please (eel tree to can our

Customer Service Desk at 603-279-7031 during the hours ol 8 00AM to

* 30PM EST. Monday through Friday You'll speak to knowledgeable.

friend', people who'll do then very best lo set things right and answer

whatever questions you may have

SUBSTITUTIONS Once in a great while a manufacturer may change or

discontinue a style m the middle of its appearance m Nicole Summers In

order lo avoid disappointing you we reserve the right to send the new

version or a substitute of equal or better value Of course as with all our

J)J)tMWJVVW<y*llMMMiitaCV''^^^^^ll'M4Mlttii

MAILING LISTS: Our list ol customers is made available to certain

other companies on a very selective basis We leel Dial these firms offer

products which will be of interest lo you Most of our customers enioy

receiving such mail, but if you would rattier not. simply copy your

mailing label exactly and send it lo Nicole Summers Mail Preterence

Service. Winterbrook Way. Meredith. NH 03253
105

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For Fast. Personal Service

ORDER TOLL FREE

800-482-5050

In N. C. Call 800-682-5050

Mondai- Fndi). 8:00•m- 6:00pm EST

Senda catalog to your friends:

Mr Mrt Ml

Address

Cny/Sute/Zip

Mr Mrt Mi

AddrtS!

Ciii/Smc.'Zif

MAIL PREFERENCE

W.M Green& Company occasionally makes iu

customer list available 10 other similar high

quality catalog companies. If you prefer not to

receive luch mailings, please notify us in writing

and we will exclude your name

(.'UHKUUAILUirrs

W,M GreenA Company is pleased to offer

businesses exceptional handcrafted gifts for their

employees and customers We can provide

assistance in the selection, presentation and

shipping of your corporate gifts Call us toll free

at 800-482-5050 and request to speak with one

of our Corporate Gift Services representatives

YOUR COMMENTS

AND IDEAS ARE WELCOME

WM Green& Company welcomes your comments and suggestions about our products and

services If you havea product idea or knowa

craftsman makinga product similar to those found

in our catalog, please takea few minutes lo let us

know in the space below Liken ise. if you have

an> comments on ho* we can improve our

services, we would welcome your suggestions

i:
108

i - ' •." V M ' \ !> I ... our specially

trained customer service staff will be

happy to take your order, assist you

in making a selection or answer

any questions about our merchandise. They are available

weekdays 8:00 a.m. to '

9 00 p.m. and on Saturday 9:00a.m. to5:00

p.m. (Eastern Standard Time). At other

times our answering

equipment will record

your order. Call and

let us help you shop

with The Tog Shop.

' i -.;'. i . .; i * .. . please

send us the mailing labels from all

duplicate catalogs. Indicate the

correct one, and we will promptly

correct our mailing list Thank you.

I> I * . . . we occasion

ally make our customer list of names

and addresses available to carefully

screened companies whose products

and activities might be of interest to

you. If you prefer not to receive

such mailings, please copy our mailing

label exactly and mail it to The Tog

Shop, Dept. W, Americus, GA 31

IMl IOC SHOP OUTLET MORLS

Mr inmr ,ou in nop n, tna mop ti I f» Tu( S«op eurlcl tloici C

i in AnfiHu, Mjiun.DuMm #«d Sp*MP.ph ofIn ti)l*t t-o-n (Kfvi

n> *. uittounl pmr. plot *pn >»i p|MIH nn 'o.« in thr ..urn

mplclr uleiimn pi .itmi Ifom the (untnt iji*lo| .. opnppw ONI

r OOfn Mpno*t IP'OOP." SplU'QJv

PKen«9i:4;44«00

M. .... L.

»f.i|jir MJII II M

Plw>n«9i; T.I44

Dublin. G« IpnaaMri.Cnr.

W«tl|PI( Mm.W*ll (nfii l-lp) Hi Alp.n SQuprr |Pn US 10)

Pnon* PIJ )'5 11)1 Phone 912 III J0J0
109

0 nf!

Frh

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3 £«•

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Ilor fastest service

order toll-free

8M/227-3O50

Within California

800/858-58o8

Local orders, call 415/588-2220

Order (l.nli rxcepi Suirda'

from7 AM t»5 PM P«mt TnOT

(10 AM •til8 PM tastern Time)

Please ha*e your catalog and <?ed»

card readil* available

Onl* credit card orders can bt attrpted

b* phone.

For Customer Service, please

<«11 415 SK*-2220

Our Price Guarantee.

Bullockk Jonei will honor all price* of

merchandise appearing in thi* catalog

through Decembei 51. IW7.

VHJ Are Welcome lo Charge li.

tsr vour WSV

MasterCard. American Exprr**

or Diners'Cane Blanche

Ma* we senda catalog io it fritnd>

Someone vou know mas enjov our catalog, too.

Wf.'ll be happ* 10 send one

P

Mailing Lilts. We occasional!* make our

customer list available io carefull*

Kreened companies whose product* or

services we feel ma* interest *<*J If *ou

do not wish to receive such mailing*.

please cop* *our mailing label exac tl* and

send io; Bullock& Jones. Mail Preference

Sennet. P.O Box 885124

San Francisco. CA 94188 3124
110

Q

FACTS ABOUT BROWNSTONE SHOPPING:

• When more than one co*c* •% listed the photog'aphed

• Sapping charges are listed • parentheses atiei each

pnce Maximum Shipping charges pP C 3(" IT 5 '5 00

• To comply w>m federal regulations Vappat1 must be

io3eiiii*d a- uSA maoe or as animport wiihm the de

scription o* each style H «t is made flthe urned Slates

tfrnipcteotabncihismusibenoled Totheverybesi

ot oof Ibflty each bock oi descriptive copy contains

ihts information as p'ovioed lo us by ihe manufacturers

• Our b

Aw^no* New Yo-K N V 10118

• We M memfe'S o» the t>reci Marketing

Association, inc and the N Y City Chamber o'

Commerce

TO ORDER PHONE TOLL-FREE ANY TIME:

Ft* taste- se'wce or e*MM card orders ca' us ICHI

tree any hou' tf the day or nighf S"xe so many o' ou'

custcne'S preier o»de"ng tn>s wa< we have increased

out phone staf and added to'-tree knes Have your

cedn card numDe- ana catalog ai hand when you can

W**n youo'de' by credit card•weca'^ ana get

authori/aion cm your account YOU« ACCOUNT IS NOT

CHARGED unw you' package has «'i ou> premises

Our phones are WO manned Dy prolesS'Onatfi•

women iam.na' with ou' merchandise•ho* u Ms toc*s

and whai goes wfh *hai They a'* f^eie lo heip iron

9 00 »- to 6 00 PV (Eastern Time) cm weekdays

SJI jiaa.-: they are at your MntOI Irom 9 00 *«/ lo

N.ghis holidays Sundays Ou'au'ifia-yshoppc's w>n

he.p you Du"ng these hou's or I our unes are busy ca"

lo'Mree i-BOO-235-nii

CALL ROUND-THE-CLOCK TOLL-FREE

1-800-221-2468

ca' 1-712-M3-1990

Atte< hcmai business hours ca' t-*00-2W-1t11

ORDERING INFORMATION:

Selections ordered loge'.he* are nor a'ways sapped

together Credit card puichases a«e bti*o atier

Enfyfnmg purchased trom Bfowtstone Studio rs

coveiea by a-'u* money-back GUARANTEE (e»cusive

ot postage and handling ) Bui ptease- when returning

me'chanojse give (he reason 'or you' reiurn and nwM

your package

G'i! wrapping is available ai a charge ot 1? 00 to*

each package We I enclose a card with your message

OUR "UPSTAIRS" BOUTIQUE

in NEW YORK our UPSTAIRS" BOUTIOUE has some

but not a" of the items m this catalog as w as iis own

unique lashions which we have selected here and

•broad Look tor our private entrance on me street»

1 East 43ra Street IUSI ot Filth Avenue Weekday hours

are 9 30 *•* to 5 30 <-M Saturdays to 5 00 ev
Ill

I

For Faster Service

on Credit Card Orders

: I

£? = C\J *

o Q B

co 1

Call Toll Free

1-800-247-1000

In Htm Jenwy call toll

Toil-Free Orders

To order by phone from the continental United Slates US

Virgin Islands, or Puerto Rico, call 1-t00-2«7-l000 seven

days a week except holidays from 9 00 AM to 9 00 PM

(Eastern time) In New Jersey, call 1-M0-272-103S From

Alaska. Hawaii or countries outside the continental United

Suites the toll number is 201-225-4070

Toil-Free Inquiries

Our telephone communicators are only qualified to accept

credit card orders Should you need information about an

item or order, please call Brooks Brothers Mail Order

Customer Service. Monday thru Friday 9 AM to 4 30 PM,

Eastern time, using our new toll-free number V60O-CS4-6595

In New Jersey, call 1-800-2215823

Charge Cards

Your order may be charged to all cards Hated on the order form

Your credit card will not be charged until your order is shipped

Delivery

Brooks Brothers will endeavor to process ail orders within 7

days of receipt However, in the event the merchandise is out

of stock, requires alteration, monogramming, or personalization , delivery may take up to 60 days You will be informed of

any delay in completing your order Selections ordered

together are not always shipped together

Sales & Use Tax

Brooks Brothers is required by law to collect applicable sales

or use taxes on all purchases shipped to states where we

maintain a place of business You will find to the left the list of

states where we must collect the prevailing taxes

Please include appropriate taxes when determining the total

of your order If you are uncertain about the correct tax.

please can our toll-free numbers listed under inquiries above

Returns

It you are not completely satisfied, your purchase may be

returned within 30 days Please enclose the packing slip and

indicate the reason for return. Please let us know if you wish

credit, refund or replacement Returns should be shipped

insured parcel pott, or UPS. to our Customer Return Dept

8iflf
112

llpti",'T,V,'V "H'^-umimyi.1

GUARANTEE Btoommeoala's By Mail Ltd

ui^condii.onaliy guarantiees ail meirhand.s* If tor

any reason you art not MI .M>ed with your purchase.

you may return it tor rotund o> reptacoment

Rartortainad item* ara not returnable

TmaoKart. Prti.amMb^rtpiaclr), of**, ..Vi.,. .

• { ^^h»rat¥ut^him*»i '•/•)';-,:•;{'• ^fi':.','';!';''^^.1'

; SJM^.Btoomf^e^ey nWlu^wWeof^ l'l'it

. OfOtMt Por you #*nQ*X«ikt\.'tor** W>dC*h fWM]!|j]i

' Chart»:fnu« have yC^r na*f«r«r*^«d ' •Vv£7' «',

'• k, Salee tki: fwahpfoa^w C^oMeot-B^M^W^'Y

iiNpn>*»atoN^>ofVaatf«^tik>fc>Ui'Viftfriia'V,; ,,.-';

, revaants add 4,i»* aeMtla*. .';'.•';" .V !i'V •

,

;'<:l\\', •'

^SW.plngrm^HendmvjChe^a* A^nd^.tn* .'

brtfar torm specifies all «TapPi'Kt ancj h»adftv'fc»«l.'- »,V.'•-'!>'

'Wmt marked [t| after ma price. Mif MsA^wa dnty^rt ••*',» *',

javkbionolthc aura cost specified,, ';•• l-'Y-'/iiv' !''* •'":

• 4. t>*l«ry: Ue.c*end«#©^»iAK>g*n#r;irtp(''-.- ' ',•;'•'•'•

ijrmcvtavlrt jh«pad together ' ~... -.'; /-V.*." .,.,»', x-Jfr/.»;

i;S fctenogrammlnt: Alow • to f**fM tor r/iw«id/emm<og •'•

9MMf» .'.••' ••,- ,»*f T •"• '/\ '•-• ' ' /.''•/.' '..:-i

,6 l*areha«liaa-n|h.Bc«ak>oU«»rJlbt«vBJaWefe.m^l v..

'kndpAbr>arxd«r3ir<riMvhfat>ruayy?1.nBft , • '. • R fMerottandree Bttum Instruction*: it Wu war-to

[»WhafBjt br rMutnrri^hat>dita.plaaaaHltduimv • - •)[(',

,: Merchandise EtctanQeVRetura Porni Vtcludadtnybw. " i ' • >'

I'M^WO* SaadihetorrafenaVwrniirchanditakr ' ••Vj f ,i;,;

Ploerningdairt By Wall LW . 476 Knolter Qrh», ! ':',•'/'•"' r.','

'jCtmrfra.pT'OMXMlM • . //. ;! ',•,'.,..' ',,•;'•' '*=;

|LtJarrenty. WhereItem •>.ndtoaad wwlh. fa)),'»layraiHy wi' ; ! . ;';c, .

•nctoaadw«hlh«prod«a.«f Joracopy. wrtaio. ' ' J

1

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115

Mr. KASTENMEIER. I would now like to yield to the Senator from

Vermont, Mr. Leahy.

Mr. LEAHY. Thank you very much, Mr. Chairman.

Mr. Barton, let me ask you a couple questions, because I did talk

about some of the basic premises and concerns that we share. We

shouldn't be able to have just anybody come waltzing in and find

out what you watch or what I watch or what your neighbors watch

or don't watch. And I understand the interest you have in being

able to develop indirect market techniques and mailing lists.

Let me give you an example of some of the things that concern

me. I have three children. One is a young teen, who sent in for a

manual on karate or kung fu or whatever all the kids were doing

at that time.

It came to him. The label on it had something unique about it. I

believe it had one letter off or something like that, but the thing

came and it was an innocuous thing about how to teach yourself

karate or whatever. He probably looked at it for 10 minutes in a

typical kid's fashion and then threw it away to be forgotten. But

what wasn't forgotten was the next 6 or 7 months.

I mean, I don t know what getting a karate manual triggers, but

I couldn't believe the stuff that started coming to this teenager. It

ranged from the Soldier of Fortune type ads to some of the most

prurient lingerie things I have ever seen. There were ads for Xrated books, videos, and something that came very close to how to

kill your neighbor. And I'm serious, it seems to have triggered all

of these things.

You know, it wasn't ads from "Sports Illustrated" or "Fish and

Game Weekly" or something like that. I mean, these are wild sorts

of things. We finally came to the point where my wife and I kept

going down to the Postmaster and just kept bringing these things

and filing that little form to take your name off the list, which was

semi-effective.

We still get them. Not as many, probably only because we have

changed our address and some of them have finally stopped.

Now, you said that you don't object to limiting the disclosure of

specific titles of videos. But you disagree with limiting the disclosure of the subject matter of videos.

That is where I have a problem. What triggers from that subject

matter? We are talking more and more sophistication with computers and with profiles of people. And politicians do this, too, on profiles of voters and everything else. But how much should we be allowed to profile somebody?

What does it trigger to someone, if I watch old westerns, or if I

watch only comedies or whatever? Should I really have to think

that somewhere, somebody is building up a profile on me based on

my personal habits, when I have no control over it? Wouldn't it

make far more sense to say if I want them to do it, let me affirmatively ask to be put on a list. Not the other way around, that I am

going to be on that list unless I think enough to ask for my name

to be taken off?

Really, I have this vision of big brother, where somebody sits at a

massive computer•somebody whom I have never seen, never will

meet in my life•but that person can kind of figure out that Patrick Leahy is this sort of person based on what he reads or what he
116

thinks or what he views and, therefore, he gets pegged a certain

way and we are now going to bring whatever the marketing tools

are available against him.

Do you see my concern?

Mr. BARTON. It is a very very broad question.

Mr. LEAHY. YOU don't have to answer yes or no.

Mr. BARTON. I understand exactly what you are talking about.

Your comments go way beyond what I consider privacy issues.

They go into the whole issue of the amounts of mail you get, the

types of mail you get, whether you are comfortable with it, whether you like it and also the vague or maybe more specific feeling as

time goes on that there is somebody out there who knows a tremendous amount about you. You are uncomfortable about it, and I

would be, too.

In the specific instance you used, and I have no idea who karate

clubs rent their list to, but I think you gave us a pretty good example.

Mr. LEAHY. The worst part is they misdelivered it to our neighbors and they said, "you got some more of that mail." Thank you

very much.

Mr. BARTON. They must be Republicans. I would say first of all,

even if it was uncomfortable and you didn't like it, your son's privacy itself was not being invaded because there was nobody sitting

in these companies who knew that your son specifically had gotten

a piece of pornographic literature or so forth.

His name exists on a huge computer tape and it is difficult or

impossible to get Mr. Leahy's name, and yes, he did do this. It is

just not done and often can't be done. Very difficult to do that. In

the second case, in terms of the rental of an awful lot of lists, that

is a subject that our industry is broaching. And I don't think you

can legislate against receiving a lot of mail. But it is of concern.

The best I can say right now is the amount of mail you get and

the number of lists you rent, and all that, is something which probably has to be handled through the marketplace because we think,

as we get more sophisticated in being able to deliver messages to

customers, that in fact that problem will be reduced.

In the case of mail you don't want to receive, such as pornographic mail, and that mail that you describe as you went down to

the post office to get your names off the list. There is a mechanism

to do that, which is somewhat effective, as you say. We get into a

lot of difficulties and we would like to find out to protect people,

too. The definition of obscenity and pornography and things of that

nature are very difficult ones. That is not a direct answer to your

question, but

Mr. LEAHY. Please understand, Mr. Barton, and I am sympathetic with your views, too. My parents had a business in Vermont that

depended on advertising and I understand the concern. I realize

how the marketplace works.

A lot of the mail you get and I get and•maybe you don't want to

have to admit this•but a lot of us look at it and it goes in the

wastebasket. The companies, of course, that do that have to figure

how effective they can be. That is fine. And if they are not effective, they go out of business.
117

A lot of mail I get is ads. I might look at something and say this

is a good idea and I will buy it and it proves a service to me. So, I

don't object to that.

What I am objecting to is that somewhere a profile builds up of

Patrick Leahy or Robert Bork. I am concerned that somewhere

based on very direct personal choices on what we read, watch, and

think, that somebody builds a profile that is nobody's business

except ours and that somebody is able to go into that profile and

determine who we are and what we are, based on what we have

done in total privacy.

When we read a book, when we watch a video, that is something

that should be our choice and our business and nobody else's in the

country. That is what I am concerned about and that is why I

worked hard on this legislation, so that somebody can't penetrate

my privacy or Judge Bork's privacy or anybody else's privacy.

Mr. BARTON. I understand that. And I think that we can probably work out some language in the subcommittee in which the

kind of profiling you are concerned about can't be tapped into.

Now, I don't believe and I probably will get many of my member

companies to jump on me about this, I don't believe the kind of

profile you are talking about truly exists as a result of renting various lists.

If you get a piece of mail from XYZ magazine, that probably has

been a combination of several lists they have rented which indicates that the people they are sending to may have a certain

income, certain interests and so forth.

You can't go into that mailing list and do a specific profile.

There are sort of assumptions made when rentals are made in

which that specific kind of information doesn't exist in a specific

profile. Now, in an individual company, you have profiles of your

customers as any retail company has.

Any time I charge to Woodward & Lothrop, Woodies knows everything I buy and my buying patterns. They can advertise to that

if they so desire. They don't let people know what that profile is,

and I think we can prevent that kind of information from being released, without preventing, within reasonable areas, without preventing a marketing company or a store, whatever it is, to be able

to appeal to that person's interest.

Mr. LEAHY. I think

Mr. BARTON. It is a very difficult issue.

Mr. LEAHY. It is, and Mr. Barton, I respect your concerns, and I

don't want to trample on free enterprise here, but this is one issue

we are going to have to deal with. What happens with interactive

television when, in the next generation we are going to be doing so

much more by using telephone lines, and televisions to pay bills

and buy food, and maybe run the lights in our houses. If somebody

wants to spin out the Orwellian theory, you can have this view of

knowing what time I leave the house, what time I come back, how

much I get paid, when I get paid, whether I pay my bills on time or

I am late on some others, what I like to eat, what I am entertaining and everything.

You know, it is almost like having somebody in the dark with

binoculars sitting outside your house and it is a little bit chilling.

You don't mean to say that we have reached that point, but these
118

are the concerns that we have, and we will continue to work with

you and the organization to tread our way through this.

Mr. BARTON. We worked with you all 2, 3 years ago on the Cable

Privacy Bill. There we were dealing with a new technology which

had great potential. I think we worked at it from a direct marketing viewpoint. We worked out a satisfactory compromise in which

we could use to a certain limited extent the list without revealing

specific information.

I think we are sort of falteringly stepping towards, from our industry's viewpoint, what is an expanded approach on this.

Mr. LEAHY. I appreciate your efforts in working that out. Thank

you, Mr. Chairman.

Mr. KASTENMEIER. The gentleman from North Carolina, Mr.

Coble.

Mr. COBLE. I thank the Chairman.

Ms. Goldman, do you disagree with the 1977 recommendations of

the Privacy Commission, that direct marketing be left to voluntary

compliance or to be more specific, the private industry police and

regulate themselves.

Ms. GOLDMAN. One of the things that the Commission said in

1977 is that direct marketers use a number of different methods

and at that early stage it didn't really make sense for them to recommend legislation, but what the Privacy Commission did find

(and I am reading from the Commission report), after looking at

the mailing list operations, is that among the record-keeping organizations that maintain records about individuals, about whom

they have a direct relationship, it is a common practice to allow

names and addresses to be used without telling the individuals.

"The Commission finds no overwhelming societal justification for

such a state of affairs" and in fact they opposed any organization

allowing that kind of complete discretion in the rental use of the

mailing lists. The Commission also said that with the increased

technology they were very concerned about some of the more troubling potentials that we could realize from the use of the mailing

lists.

The Commission did look at the issue, and they did express concern. They did stop short of recommending legislation in this area,

but they did say that they were very concerned about the future in

this area, and now, 10 or 11 years later, we see that things that

they were concerned about have occurred and that now is the time

to recommend legislation.

I don't know what they would do if they still existed to look at

this issue. But they did raise the concern.

Mr. COBLE. You want equal time, Mr. Barton?

Mr. BARTON. We work with the ACLU on many issues and we

generally agree. This one we don't agree on. In the first place, concerns have been expressed but not any specifics. I do not know of

any specific case in 17 years that we have been involved in privacy

programs that the kind of information we are talking about has

been revealed.

I don't know of any and I would like to see a record on it. I think

our industry's record has been almost unparalled in that area. Secondly

Mr. COBLE. Repeat what you just said.
119

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?
120

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 allow-
121

ing 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
122

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 I see

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 X-
123

rated 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 bill.

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

90-845 0-89-5
124

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. DEWINE. I would be more than happy to yield.

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. KASTENMEIER. The Senator from Vermont.

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 8V2 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.
125

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 6Vz 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
126

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.

DeWine, 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,
127

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 was

an 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
128

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

Mr. KASTENMEIER. Yes.
129

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.
130

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.]
ADDITIONAL STATEMENTS

STATEMENT OF SENATOR PAUL SIMON BEFORE A JOINT HEARING

OF THE SENATE SUBCOMMITTEE ON TECHNOLOGY AND THE LAW

AND THE HOUSE SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES

AND THE ADMINISTRATION OF JUSTICE

ON THE VIDEO AND LIBRARY PRIVACY PROTECTION ACT OF 1988

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 tobusinesses 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

10 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

(131)
132

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.
133

STATEMENT OF SENATOR ALAN K. SIMPSON

JOINT HEARING ON S. 2361

AUGUST 3, 1988

RAYBURN HOUSE OFFICE BUILDING 2237

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
134

now and I think it la certainly appropriate for both video records and

library records.

It la that cherished American right of privacy that we are

protecting with this legislation. People in this country may not even

be able to read or understand the Constitution, but they surely can

understand the concept of privacy In their personal lives. Plain old

unmitigated unvarnished privacy. The right to be left alone. That is

why such diverse groups are working on this bill in order to obtain its

passage.

I do not mean to Imply that the bill as currently drafted is

perfect. Otherwise there would not be much reason for these hearings.

I do think we can perhaps review some provisions in the bill and offer

suggestions in how to increase its effectiveness without impinging on

appropriate release and disclosure of personal records to law

enforcement officials or under court order as appropriate.

I think we need to be especially careful that we do not overly

restrict the access of such information to legitimate police inquiry

where it Is necessary to further investigations into criminal

activities which may even affect national security through espionage.

It may seem absurd to state that a person's video records or library

records could somehow be connected with foreign counterintelligence and

espionage. But it is quite apparent that Just such foreign operatives

are actively engaged in the use of our vast, easily accessible library

system in order to recruit intelligence sources and to uncover

Information which perhaps should not be so readily accessible.
135

I look forward to working with the Senate and House Subcommittees

and the Senate full Committee on the Judiciary on this important

issue. As an original cosponsor of the Senate bill, I think it is most

important that we pursue markup on the bill. I also want to thank

members of these Subcommittees for the active involvement which they

have taken in seeing this legislation through the process and the

remarkable and consistent work of Congressman Al McCandless in the

House to introduce the bill and work towards its passage. Thank you.
136

ADDITIONAL MATERIALS

Congretf* of rtjc ®ntteb fetates

Jjoust of fteprtttntatibr*

•HtbVMb ».C 20315

July 26, 1988

The Honorable William S. Sessions

Director

Federal Bureau of Investigation

10th i Pennsylvania Avenue, H.W.

Washington, D.C. 20535

Dear Mr. Sessions:

The House of Representatives Committee on the Judiciary

Subcommittee on Courts, Civil Liberties and the Administration of

Justice and the Senate Committee on the Judiciary Subcommittee on

Technology and the Law are planning to conduct a joint hearing on

H.R. 4947 and S. 2361 (copies enclosed), relating to the privacy

rights of users of video and library services. The hearing will

be held at 9:30 a.m. on Wednesday, August 3, 1988, in Room 2237

Rayburn House Office Building.

We would like to invite you or your designee to appear and

testify on H.R. 4947 and S. 2361. Please summarize your opening

statement so that it does not exceed five minutes. Enclosed you

will find a notice which sets forth the House Judiciary

Committee's requirement that prepared statements be filed at

least 48 hours prior to your scheduled appearance. In accordance

with Committee policy, fifty copies of your statement must be

submitted by no later than 9:30 a.m. on August 1, 1988. Due to

the large number of Members who will be attending the hearing, an

extra fifty statements would be appreciated. Please forward 50

copies to the House Subcommittee on Courts, Civil Liberties and

the Administration of Justice, 2137 Rayburn House Office

Building, Washington, D.C. 20515, and 50 copies to the Senate

Subcommittee on Technology and the Law, 224 Dirksen Senate Office

Building, Washington, D.C. 20510.
137

The Honorable William s. Sessions

July 26, 1988

Page 12

Please do not hesitate to contact either Committee at 22S-3926 or

224-3406 if you need further information.

Your earliest acceptance of this invitation would be appreciated.

Sincerely,

'/PATRICK^. LElmZ^\

Chairman /

(i£uW. f

1

^

PETER W. RODINO, JR.

Chairman

Senate Subcommittee on House Committee on

Technology and the Law the Judiciary

PWRrvsj

Enclosure
138

U.S. Department oflattice

Federal Bureau of Investigation

Offk* of Ih« Dtredor tKuAinffoK. D C. 20S3}

August 2, 1988

Honorable Peter w. Rodino, Jr.

Chairman

Committee on the Judiciary

House of Representatives

Washington, D.C.

Dear Mr. Chairman:

Thank you for your letter dated July 26, 198S, inviting

me to appear at the joint hearing of the House Committee on the

Judiciary Subcommittee on Courts, Civil Liberties, and the

Administration of Justice and the Senate Committee on the

Judiciary Subcommittee on Technology and the Law on August 3,

1988. to testify on issues related to the privacy rights of users

of video and library services. I must decline the invitation but

would like to offer comments on H.R. 4947 and S. 2361 which I

will provide to you by separate letter.

William S. sessions

Director
139

ornct res INTELLECTUAL FREEDOM

AMERICAN LIBRARY ASSOCIATION

iO t*ST HURON STRICT CHICAGO IL I INOIS 606H ' <3IJ' R44R7BO

August 23, 1966

The Honorable Robert Kastenmeler

2326 Rayburn House Office Building

Washington, D.C. 20515

The Honorable Patrick Leahy

Chairman

Subcommittee on Technology and the Law

SH-615 Hart Senate Office Building

Washington D.C. 20S10

Dear Representative Kastenmeler and Senator Leahy:

On behalf of the American Library Association, I want to thank

you for holding the joint hearing August 3 on H.R. 4947/S. 2361.

This bill Is a major step forward in protecting the privacy

rights of Americans. If enacted, this bill would establish a

uniform federal standard which would protect the privacy of

library users. This standard would be a complement to that

which 36 states have already adopted and would be controlling In

states where no similar law exists.

The difference between the House and Senate versions on the

detail of whether a court ordered disclosure could occur in civil

as well as In criminal matters received much discussion. Our

view would be that the most Important concept here is that of a

court order as the required vehicle for disclosure. We recognize

and agree with the view expressed by Senator Leahy limiting the

grounds for such an order to a criminal proceeding.

Since the hearing, my colleagues and I have continued to work

with staff on language and to respond to their questions. We

are grateful for your support and interest in this matter.

Sincerely Jiii. c 1 ciy, .

C. James Schmidt, Chair

Intellectual Freedom Committee

CJS:bas
140

AMERICAN LIBRARY ASSOCIATION

SO EAST HURON STREET CHICAGO ILLINOIS 60«lt I3!2> 944 6780

September 23, 1988

The Honorable Robert W. Kastenmeier

2328 Rayburn House Office Building

U. S. House of Representatives

Washington, D. C. 20515

Dear Hr. Kastenmeier:

On behalf of the American Library Association, I an writing to

express our strong support for the Video and Library Privacy Protection

Act of 1988, HR 4947, legislation that would create a federal right to

privacy in personally identifiable library use records and video rental

or sale records.

Thirty-eight states, plus the District of Columbia, have passed

laws protecting the confidentiality of library use records. In addition, since 1970, the ALA and its more than 45,000 member librarians,

library trustees, and libraries have had a policy: a) that library

circulation records are confidential in nature; and b) that such records

should not be made available to any other party except pursuant to a

court order issued by a judicial authority.

The ALA opposes any amendment to the proposed legislation which

would create a "national security letter" disclosure process.

Particularly in view of the Federal Bureau of Investigation's repeated

testimony before House and Senate committees that the Bureau is not

interested in library records, and has never requested or received

library records, we fail to see any justification for creating a special

disclosure process to provide access to library records for the FBI or

other law enforcement agencies.

Further, the adoption of any amendment to HR 4947 to create a

"national security letter" disclosure process may authorize a part of

the FBI Library Awareness Program, or similar activities. Both the

House and Senate recently have held hearings on these activities.

Creating a "national security letter" disclosure process at this time

appears to ALA to grant tacit approval to the Bureau program(s). ALA

believes that taxing action which appears to endorse the very activities

now under congressional scrutiny naturally undermines the integrity of

the investigations, and may defeat their purpose outright.

A court order, obtained upon good cause shown to the appropriate

judicial authority, is the proper vehicle for obtaining library records.
141

Mr. Kastenmeier

September 23, 1988

Page Two

We believe the court order standard in HR 4947 is the only justifiable

standard to require production of such records, and it will not impede

legitimate law enforcement interests. Furthermore, this process

protects librarians with a uniform standard to be applied when

librarians are faced with one of the most crucial dilemmas of their

profession, a choice between maintaining their professional ethics, or

acceding to requests by law enforcement authorities.

Again, we strongly support the single court order standard now in

the bill, and we urge the Committee on the Judiciary to defeat any

amendment relating to a "national security letter" disclosure process.

Thank you for your consideration.

Sincerely,

dith F. Krug

birector

Office for Intellectual Freedom

JFKitj
142

Special Libraries

Association

1700 Eighteenth Slteel. N W

Washington. D C 20009

202/25-14700

September 26, 1988

The Honorable Peter W. Rod1no, Jr.

Chairman

House Judiciary Committee

Washington, D.C. 20515

Dear Mr. Chairman:

On behalf of the Special Libraries Association, I want to express our

support for the confidentiality of library records maintained by public

institutions. In this regard, we are pleased that the House Judiciary

Committee will be considering legislation which embodies this principle, H.R. 4947, the Video and Library Privacy Protection Act of 1988.

As the bill now stands, library records could only be obtained with

the approval of the individual involved or by a court order. We are

chagrined to learn that the Federal Bureau of Investigation is

attempting to get a "national security letter" exemption. This would

enable the FBI to get confidential library records without judicial

review or notification of the subject in question.

In our opinion, this circumvents the intent of the legislation and

enables the FBI to obtain library records without showing cause. The

Association opposes the activities of the FBI's Library Awareness

Program and views this national security exemption as a way for this

agency to continue its program, with, in essence. Congressional

approval.

Interestingly, the FBI has stated in Congressional hearings that it is

not interested in obtaining library records. We would question, therefore, why the agency deems it necessary to seek an exemption in this

legislation.

We urge you, as a member of the House Judiciary Committee, to oppose

any national security exemption for any federal agency including the

FBI during consideration of the Video and Library Privacy Protection

Act of 1988.

Sincerely,

David R. Bender, Ph.D.

Executive Director

DRB/lh

David R Bende*. Executive Oiiectoi

Richard D Battaglia Associate Executive Di'ecto*
143

/^•PeopleF<xThe |J/ /^umencanrray

ACTION FUND

October 3, 1988

The Honorable Robert Kastenaeier

Chairman

Subcommittee on Courts, Civil Liberties,

and the Administration of Justice

2137 Kayburn

Washington, D.C. 20515

Dear Chairman Kastenaeier,

On behalf of the 270,000 members of the People For the

American Nay Action Fund, a nonpartisan constitutional liberties

organization, I urge your support for H.R. 4947, the Video and

Library Privacy Act. The Courts, Civil Liberties and the

Administration of Justice Subcommittee is scheduled to mark up

H.R. 4947 on Tuesday, October 4, 1988. The bill is an essential

safeguard against the wrongful disclosure of information relating

to an individual's use of libraries, and the use of services

involving video rental or sale. America is in the midst of an

information revolution in which a balance must be struck between

the increased ability to acquire information, and the need to

protect personal privacy.

Evidence of the need for the bill is apparent in several

actions brought to the attention of the public:

• In 1988, it was revealed that the Federal Bureau of

Investigation, as part of its controversial "Library

Awareness Program," has attempted to obtain library

circulation records as part of a counter-intelligence

effort. The FBI's program has frequently been conducted

without regard to the library confidentiality laws of some

of the 38 states around the country which have such laws.

Such activities threaten constitutional rights to privacy,

and ironically, suspend democratic freedoms in the name of

protecting democracy.

• In 1987, a Washington, D.C, newspaper published the

videotape rental record of the family of Supreme Court

nominee Judge Bork. According to press accounts, the

profile of the Bork family's viewing habits was leaked to a

reporter by ma•one with access to the computer videotape

rental files. We believe that the release of such

information is a clear violation of the right to privacy.

Citizens who rent videos to view in the privacy of their own

hoaes do so with the expectation that their choices are a

private matter.

2000 M Slr«l, NW, Suite 400, Washington, D.C. 20036 (202) 467-4999
144

H.R. 4947 creates important enforcement mechanisms to

protect against wrongful disclosure of video records: (1) civil

penalties for infractions (2) requirement of written consent from

consumer for disclosure of personal identifiable information at

time the disclosure is sought. Currently such information about

individuals is released unless it is expressly prohibited.

People For the American Nay Action Fund strongly supports the new

enforcement and consent provisions.

Americans must be assured that their, choices of library

materials and video transactions are kept private. H.R. 4947

creates such clear and uniform protections in federal law.

People For the American Hay Action Fund urges Congress and the

President to support the "Video and Library Protection Act," and

to oppose all weakening* amendments.

Sincerely,

Arthur J. Kropp

President
146

association op Reseawcb LfBRORies

1527 New Hampshire Avenue. N.W.. Washington. DC 20036 (202) 232-2468

OUANE E. WEBSTER

September 26, 1968 fxecuf/ve Director

The Honorable Robert Kastenmeler .^-v

U.S. House of Representatives

2328 Kayburn House Office Bldg.

Washington, D.C. 20515

Dear Congressman Kastenmeier:

This letter is to convey the support of the Association of Research Libraries for

the Video and Libraly Privacy Protection Act of 1988, HR 4947. The provisions of the

bill are in harmony with the policies of research libraries and such a federal law will

strengthen protection for the confidentiality of library records by prohibiting their

disclosure except with the person's consent or under court order.

In a related matter, ARL follows the investigation of the FBI Library Awareness

Program by the Civil and Constitutional Rights Subcommittee. ARL has formally

opposed the Library Awareness Program and we have asked FBI Director Sessions to

publicly disavow the program. We await with considerable interest the next steps in the

Subcommittee investigation.

We now understand there may be a national security letter exemption in the Video

and Library Privacy Protection Act that allows the FBI to gain access to records

without court order pursuant to foreign counterintelligence activity. We strongly

oppose this provision. We also do not understand the rationale for considering it as part

of HR 4947.

It is ARL's position that library records deserve to be protected by a higher

standard than this exemption provides. Library records represent First Amendment

activities - to receive and exchange information - and should be revealed only after a

judicial review determines it is necessary. In addition, the FBI has said publicly that

they are not interested in, nor do they seek to see library records. So what is the need

for exempting the Bureau from the Video and Library Privacy Protection Act?

A mandatory or permissive national security letter exemption in HR 4947 would in

part authorize, or be perceived by library users as authorization, for the Library

Awareness Program and other similar activities. Adoption of this exemption would also

put an end to the Congressional investigation of the Library Awareness Program. Given

the negative publicity and questions that remain unanswered by the FBI about the

Library Awareness Program, these are not desirable consequences.

ARL urges that the House address the two issues separately by passing the Video

and Library Records Protection Act this session but without a national security letter

exemption. This action would strengthen protection for the confidentiality of video and

library records and allow the ongoing Congressional investigation in the Library

Awareness Program to continue.

Sincerely

ft Dual* E. Webster

Executive Director
146

».*. fcotult of Rtprfstntatibt*

Comnitttt on tfjt Jubinarp

•Mtnngton. SC 20515-6218

UqtHM 202-225-3951

September 22, 1988

The Honorable Louis Stokee

Chairman

Parmanant Salact Comaittaa

on Intalliganca

U.S. Houaa of Representatives

Waahington, DC 20S15

Daar Mr. Chairman:

wa arm writing to you about H.R. 4947, tha vldao and Library

Privacy Protection Act of 1988, which prohibit* tha unauthorized

dlaclosura of vidao and library racorda. Tha bill haa broad,

bipartisan support. It waa introduced in response to tha

disclosure of Judge Robert Bork's vidao atora racorda during hia

Supreme Court nomination hearings, and was expanded to include

libraries, where tha potential for aimilar abuses ia great.

He understand that rapraaantativaa of tha Federal Bureau of

Invaatigation have spoken with certain Members about possible

amendments to the bill. Wa are greatly concerned that these

amendments not be permitted to impede the progress of the bill,

which is presently being marked up by the Subcommittee on Courts,

Civil Liberties and tha Administration of Justice. He expect the

bill to be favorably reported by the Subcommittee, and to proceed

to full Judiciary Committee consideration next week.

He stress that tha FBI has never formally contacted us about

any problems with H.R. 4947. Counsel to the Subcommittee sat

with FBI representatives last July 13, and tha Bureau was

informally invited to testify at the Subcommittee's August 3

hearing. A formal invitation letter was issued on July 26, 1988.

The Bureau declined these invitations, both informally to

Subcommittee counsel, and in an August 2, 1988 letter from

Director William Sessions. On both occasions, however, the

Bureau promised to submit written comments on the bill. He have

never received any such comments.

Our understanding, however, is that tha Bureau has eight

specific problems with H.R. 4947. Seven of the problems relate

generally to the scope of materials prohibited from disclosure,

and to tha standards by which law enforcement aganciea may seek

court ordered disclosure of video and library records. The

Bureau apparently believes that these standards are too onerous.
147

Page 12

and we are willing to seek appropriate amendments at the full

Committee markup to rectify these seven concerns.

The eighth proposal Is a request that the FBI be permitted

to obtain video and library records without seeking a court

order, through a national security letter. While we recognize

that such a procedure has been authorized in other laws, relating

to bank and telephone toll records, we strongly believe that this

procedure is inappropriate in this context. First, the aaterials

protected by H.R. 4947 are protected by the First Amendment, and

thus entitled to the strongest possible prohibition against

disclosure. Second, the FBI has simply not made any case that

the national security letter procedure is warranted here. In

testimony about the Library Awareness Program before the

Subcommittee on Civil and Constitutional Rights last July, the

Bureau testified that "I can assure you that the FBI is not now

nor has it ever been interested in the reading habits of American

citizens. . . I have found no situation at all where we got any

records or any information on any U.S. person as far as library

records or personal information goes, any." In either the video

or library context, there has been no evidence to the contrary.

We are more than willing to accommodate the FBI in its

legitimate law enforcement needs. However, the Bureau does not

need a national security letter exemption and to permit it would

create such a large hole in the bill as to render our efforts

futile. The insertion of a national security letter exemption

would be seen by the library community as congressional

authorization for the Library Awareness Program, which, as you

know, has generated tremendous concern among librarians. Given

the questions raised by the Bureau's conduct in the CISPES case,

where extensive use was made of the national security letter to

obtain bank and telephone toll records, this is no time to

authorize further use of the technique, particularly for records

with First Amendment implications, such as library and video

records.

We hope that you will not act favorably on any request that

the House Committee on Intelligence seek a sequential referral on

H.R. 4947. Please feel free to contact either of us if you need

sore information about this matter.

Sincerely,

ROBERT W. KASTENMEIER DON EDWARDS

Chairman Chairman

Subcommittee on Courts, Subcommittee on Civil

Civil Liberties and the and Constitutional Rights

Administration of Justice
148

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General Washington. D C 20S30

SEP 2 7 1988

Honorable Robert W. Kastenmeier

Chairman

Subcommittee on Courts, Civil Liberties,

and the Administration of Justice

House of Representatives

Washington, D.C.

Dear Mr. Chairman:

I am writing to comment on H.R. 4947 and S. 2361, bills

which would regulate the manner in which law enforcement agencies

obtain records from libraries and video stores.

Of significant concern to the FBI and other law

enforcement agencies is the cumulative effect that this

legislation arid other similar legislative initiatives have on law

enforcement's ability to protect the public safety and ensure the

national security. The notification requirements and the

administrative burden necessary to obtain such information will

deter law enforcement requests for such information. More

importantly, the standards contained in these bills are

tantamount to an absolute prohibition of disclosure of personally

identifiable information to law enforcement agencies for

investigative purposes.

One of the exceptions created by the bills would

provide for the disclosure of information incidental to or

necessary for legitimate business concerns. It is troublesome

that information prohibited for law enforcement purposes could be

readily disclosed for business purposes.

I understand that 38 states have already acted to

provide for confidentiality of library records. Federal

legislation for library confidentiality is an intrusion into

areas traditionally regulated by the States. Regulation of video

record confidentiality by the States is to be expected. If

Congress, however, determines that Federal legislation is

required to protect personally identifiable information hole1, by

video service providers &nd libraries, I offer the following

recommendations that would ensure essential law enforcement
149

Honorable Robert W. Kastenmeier

investigative needs can be fulfilled while providing an

independent review to determine if the information is needed for

legitimate law enforcement purposes or required to protect the

national security. Although these recommendations will provide

for basic needs, from a public safety standpoint a general

exemption would be preferred.

S. 2361 contains a definition of personally

identifiable information. I recommend that definition be

included in the House bill. Provisions of each bill address the

disclosure of personally identifiable information to Federal and

state law enforcement agencies. The provisions that notice be

given to the subject of the information about a court proceeding

providing for disclosure are often contrary to law enforcement

Interests in that they acknowledge the existence of an

investigation. Also troublesome is the standard of "clear and

convincing evidence" that the subject of the information is

reasonably suspected (S. 2361) of engaging in or has engaged

(H.R. 4947) in criminal activity and that the information sought

would be highly probative to the case. "Clear and convincing" is

not a term frequently used in criminal matters. It should be

clearly defined, and if it remains in the bills, should be

distinguished from the higher standard of probable cause.

H.R. 4947 would add an additional requirement that law

enforcement must show that other less intrusive investigative

processes have been utilized or would not succeed. Although a

similar provision appears in the Federal wiretapping statute, it

is observed that electronic surveillance is an extraordinary

investigative technique and is usually used to obtain information

directly from suspects, not third parties. It also invades an

area in which there is a high expectation of privacy. H.R. 4947

also requires a showing of why the value of tie information

sought would outweigh competing privacy interests. These

standards would effectively prohibit law enforcement agencies

from obtaining video and library records for investigative

purposes.

To remedy these problems, I recommend that disclosure

to law enforcement agencies be allowed by two authorities: a

court order and a grand jury subpoena. The standards for

issuance of a court order or subpoena would be identical to the

standards for those instruments as required by a court or a grand

jury for issuance. Either could provide for nondisclosure to the

subject of the records.
150

Honorable Robert W. Kastenmeier

A third disclosure process by "national security

letter" should be fashioned to parallel the Electronic

Communications Privacy Act (18 U.S.C. Sec. 2709) or the Right to

Financial Privacy Act (12 U.S.C. Sec. 3414(a)) which permit the

disclosure of telephone toll records and financial institution

records when a certification is made that records sought are for

foreign counterintelligence purposes and that there are specific

and articulable facts giving reason to believe that the customer

or entity whose records are sought is a foreign power or an agent

of a foreign power. Without this procedure, the FBI could not

effectively monitor and counter clandestine activities of hostile

espionage agents and terrorists. The standard of "specific and

articulable facts" is lower than the probable cause or "clear and

convincing evidence" standards. It is the standard used for

disclosure of financial and telephone toll records in

counterintelligence investigations. The national security letter

process will, however, limit access, and if coupled with a semiannual reporting procedure, similar to that contained in the

Right to Financial Privacy Act, can be reviewed by appropriate

congressional oversight committees.

As noted above, our estimates show that such disclosure

procedures would have limited use. It is, however, important

that if Federal confidentiality legislation is adopted relating

to video services and library services, that there be procedures

available that will allow legitimate Federal, state and local law

enforcement needs to be served in a reasonable manner, balancing

?ublic safety and the national security with personal privacy

nterests.

In conclusion, these recommendations provide for

minimal law enforcement interests. Although Federal law

enforcement agencies could perhaps work effectively under a new

records disclosure process, I fear the impact of such legislation

will cause serious problems on the quality and effectiveness of

local law enforcement where work is of a more reactive nature and

where the abilities to deal with such procedures are more

limited.
151

Honorable Robert H. Kastenmeier

The Office of Management and Budget has advised that

there is no objection to the presentation of this report from the

standpoint of the Administration's program.

Sincerely.

IkThomas M. Boy

Acting Assistant Attorney

General

Office of Legislative Affairs

1 - Honorable Peter W. Rodino, Jr.

Chairman

Committee on the Judiciary

House of Representatives

Washington, D.C.

1 - Honorable Hamilton Fish

House of Representatives

Washington, D.C.

1 - Honorable Don Edwards

Chairman

Subcommittee on Civil

and Constitutional Rights

Committee on the Judiciary

House of Representatives

Washington, D.C.

1 - Honorable J. Moorhead

House of Representatives

Washington, D.C.

o