[Congressional Record Volume 157, Number 186 (Tuesday, December 6, 2011)]
[House]
[Pages H8161-H8165]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ONLINE CONSENT FOR SHARING VIDEO SERVICE USE
Mr. GOODLATTE. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 2471) to amend section 2710 of title 18, United States Code,
to clarify that a videotape service provider may obtain a consumer's
informed, written consent on an ongoing basis and that consent may be
obtained through the Internet, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 2471
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. AMENDMENT.
Section 2710(b)(2) of title 18, United States Code, is
amended by striking subparagraph (B) and inserting the
following:
``(B) to any person with the informed, written consent
(including through an electronic means using the Internet) in
a form distinct and separate from any form setting forth
other legal or financial obligations of the consumer given at
one or both of the following times--
``(i) the time the disclosure is sought; and
``(ii) in advance for a set period of time or until consent
is withdrawn by such consumer;''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Virginia (Mr. Goodlatte) and the gentleman from Michigan (Mr. Conyers)
each will control 20 minutes.
The Chair recognizes the gentleman from Virginia.
General Leave
Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and include extraneous materials on H.R. 2471, as amended.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may
consume.
Today I am pleased that we are considering a bipartisan bill to
update the Video Privacy Protection Act of 1988. This bill will ensure
that a law related to the handling of videotape rental information is
updated to reflect the realities of the 21st century.
The VPPA was passed by Congress in the wake of Judge Robert Bork's
1987 Supreme Court nomination battle, during which a local Washington,
D.C., newspaper obtained a list of videotapes the Bork family rented
from its neighborhood videotape rental store. This disclosure caused
bipartisan outrage, which resulted in the enactment of the VPPA.
The commercial video distribution landscape has changed dramatically
since 1988. Back then, the primary consumer consumption of commercial
video content occurred through the sale or rental of prerecorded
videocassette tapes. This required users to travel to their local video
rental store to pick a movie. Afterward, consumers had to travel back
to the store to return the rented movie. Movies that consumers rented
and enjoyed were recommended to friends primarily through face-to-face
conversations. With today's technology, consumers can quickly and
efficiently access video programming through a variety of platforms,
including through Internet protocol-based video services, all without
leaving their homes.
This bill updates the VPPA to allow videotape service providers to
facilitate the sharing on social media networks of the movies watched
or recommended by users. Specifically, it is narrowly crafted to
preserve the VPPA's protections for consumers' privacy while
modernizing the law to empower consumers to do more with their video
consumption preferences, including sharing names of new or favorite TV
shows or movies on social media in a simple way. However, it protects
the consumer's control over the information by requiring consumer
consent before any of this occurs, and it makes clear that a consumer
can opt-in to the ongoing sharing of his or her favorite movies or TV
shows without having to provide consent each and every time a movie is
rented.
It also makes clear that written, affirmative consent can be provided
[[Page H8162]]
through the Internet and can be withdrawn at any time.
Finally, thanks to an amendment from the gentleman from New York, the
ranking member of the Constitution Subcommittee, Mr. Nadler, the
amended bill we are considering today requires that the consent be
distinct and separate from any other form setting forth other legal and
financial obligations.
This bill is truly pro-consumer and places the decision of whether or
not to share video rentals with one's friends squarely in the hands of
the consumer. In fact, the cochairs of the Future of Privacy Forum
correctly pointed out, in an opinion piece in Roll Call on November 29,
that ``the antiquated law on the books is a hindrance to consumers.''
This legislation does not change the scope of who is covered by the
VPPA or the definition of ``personally identifiable information.'' In
addition, it preserves the requirement that the user provide
affirmative, written consent.
It is time that Congress updates the VPPA to keep up with today's
technology and the consumer marketplace. This bill does just that. I
hope my colleagues will join me in supporting this important piece of
bipartisan legislation.
I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
I thank the gentleman from Virginia (Mr. Goodlatte) for his excellent
presentation. I agree with him that what probably triggered this bill
in 1988 was Supreme Court nominee Robert Bork's video rental history in
which his privacy was violated in a very major way. And so I join him
and the members of the House Judiciary Committee in supporting the
Video Privacy Protection Act, which provides continued consumer
protection. H.R. 2471 is very important in this respect because, over
the course of the 23 years since this measure has become law, there
have been significant changes in the ways and the means by which people
view technological content.
Movies can now be downloaded to mobile phones; live events can be
streamed in real-time to laptops using mobile Internet services. There
were so many other things happening in the transformation that go on at
all times that could not have been contemplated in 1988. So there was
ambiguity about whether the statute applies only to physical goods,
such as videocassettes and DVDs.
Under this bill, a videotape service provider means anybody engaged
in the business, in or affecting interstate or foreign commerce, of
rental, sale, or delivery or prerecorded videocassette tapes or similar
audiovisual materials. It's the phrase ``similar audiovisual
materials'' that has created some ambiguity. So what we've done is
specified the requirement of informed written consent for disclosure
may include consent through electronic means using the Internet.
As the bill moved through committee markup, I wanted to make sure
that the bill provided the greatest protections for consumer privacy.
Accordingly, like the subcommittee chair, I supported the Nadler
amendments that required such consent requests be clearly and
prominently presented to the consumer.
{time} 1500
Fortunately, those amendments were accepted. And though I feel that
the bill could have gone further--I believe, for example, that the
consumer should be asked periodically if their consent should be
renewed--it is a good bill. Accordingly, I join in supporting its
passage.
I reserve the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I thank the gentleman from Michigan, the
distinguished ranking member of the committee, for his support for the
legislation.
I continue to reserve the balance of my time.
Mr. CONYERS. I am pleased to yield such time as he may consume to the
gentleman from North Carolina, my friend Mel Watt of the Judiciary
Committee. He is the ranking subcommittee member of this part of the
Judiciary Committee.
Mr. WATT. I thank the gentleman from Michigan for yielding time. I
regret that I have to be the skunk at the party today in opposition to
this bill.
While I support innovation on the Web, I do not support it at the
expense of consumer privacy. I believe we've rushed this bill to the
floor without sufficient development and, consequently, without giving
any thought to its implications for consumer privacy.
The bill would amend what is widely considered to be one of the
strongest protections of consumer privacy records in the United States,
the Video Privacy Protection Act, without receiving testimony from a
single privacy expert. It also ignores the impact this bill may have on
State laws providing similar or greater protections. At a time when we
know that technology that's pervasive and invasive has become almost
commonplace, our responsibility as policymakers is not to surrender to
technology and to sacrifice the values that we have held dear since the
founding of this Nation.
Technology and privacy are not incompatible. We can and should
promote technological innovation while simultaneously preventing the
unwarranted, uninformed dissemination of personal information. This
bill falls short of that objective. The supporters of this bill point
to the widespread sharing already taking place over the Internet, but
they neglect to publicize the privacy lawsuits, some of which are still
pending, against those video and music sites that permit their users to
share their playlist.
The Video Privacy Protection Act was not only a reaction to the
publication of Judge Robert Bork's rental records during his nomination
proceeding to the United States Supreme Court. The committee report
also noted where an attorney obtained video records in a custody
dispute to demonstrate that the father was unfit to have custody of his
children based largely on his video rental records. Many of the
lawsuits today reflect consumer concerns with precisely this type of
abuse and misuse of rental records and other equally private
information.
The stated purpose of the bill is to respond to the new commercial
video distribution landscape by empowering consumers to do more with
their video consumption preference, including sharing names of new or
favorite TV shows or movies on social media in a simple way. But when
you really peel away the layers, you have to ask yourself one question:
Who does this bill benefit? It really doesn't benefit the consumer. The
consumer already has the capacity to share his or her video preferences
online however she pleases.
The bill instead benefits companies by relieving them of the burden
of protecting consumer records by getting a one-time universal consent
to disclose users' viewing history in order to share them on social
media sites. But because social media sites are often dynamic, with
users' rosters of friends ever changing, a consumer's consent today to
allow access to their viewing history is clearly not informed by who
will be their friend tomorrow.
Today, when online bullying of teens or young adults is increasing
and leading to depression or suicide, we should have greater care to
ensure that their interests are not cavalierly disregarded. Allowing
video service providers to release information as private as a person's
viewing history, which clearly shows to the world their loves, likes,
and dislikes, should not be done without careful contemplation and
consideration.
In closing, I would just emphasize that I believe that technological
advance and innovation are both extremely important. It is the future
of America's economy. I don't question that. However, allowing the
release of truly private consumer information in the name of innovation
without careful consideration is reckless on our part, and I urge my
colleagues to vote ``no'' on this legislation.
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may consume
to respond to my good friend from North Carolina. He and I have
attempted to work together to resolve his differences. In fact, I
believe that the amendment offered by the gentleman from New York (Mr.
Nadler) does resolve some of the concerns the gentleman had. But
obviously, as he has just expressed, not all of them. So I would like
to respond to what he has indicated.
Content providers, the Internet community, and consumer advocacy
groups
[[Page H8163]]
support the bipartisan effort to enact a commonsense modernization of
the Video Privacy Protection Act. Hulu, Google, Facebook, IAC, Apple,
the Center for Democracy and Technology, and the Future of Privacy
Forum are among those who see H.R. 2471 for the simple modernizing
amendment that it is.
The VPPA contains a strict standard of privacy: Opt-in consent. The
proposed amendment to the VPPA, H.R. 2471, keeps the opt-in standard
fully intact. H.R. 2471 enhances the protection provided by the VPPA by
ensuring that the opt-in consent required must be separate and distinct
from any other end-user agreement. This measure further empowers
consumers to make decisions about their information in a manner that is
fully informed.
None of the examples provided by Mr. Watt illustrated disagreement
between the commenters he highlighted with the consumer empowerment
measures that H.R. 2471 provides. H.R. 2471 simply gives consumers the
freedom to share what they've watched with their friends if they would
like to. It grants consumers the same right to share movies and
television shows that they've enjoyed, as is already possible for
music, news, and books. He correctly notes that someone can right now
go on Facebook or some other social media and say, I watched this movie
or that television show, and I like it or don't like it. The
difference, however, is that consumers do not understand why they can
have an arrangement for the music they listen to to immediately go up
online so that their friends can listen to the same music
simultaneously, but with regard to movies they have to take additional
steps that can, under circumstances, be inconvenient to them. That's
why they like this convenience, and that's why consumers should have
it. And that's why this bill empowers consumers in ways that they are
not empowered today, and why it is a real consumer bill.
H.R. 2471 ensures that the VPPA's high standard of privacy protection
remains untouched. Consumers must affirmatively opt in to share with
friends the movies and television shows they've watched. A consumer can
withdraw his or her consent at any time. And H.R. 2471 is narrowly
tailored to update the VPPA, a 1980s law, to make it compatible with
consumers' desires, with consumers' communication, with consumers'
socializing on the Internet in the 21st century.
{time} 1510
The committee has indicated in its report language that there is no
intention for this clarification to negate in any way existing laws,
regulations, and practices designed to protect and provide the privacy
of children on the Internet. As always, however, the first line of
defense to protecting a child's privacy while online is the parents.
Social networking Web sites allow users to share personal information
about themselves with their friends; but used inappropriately, personal
information can be shared beyond a user's friends. Just as parents are
responsible for teaching their children not to talk to strangers, the
committee expects parents to play an active role in ensuring their
children's proper use of social networking or any other Web sites on
the Internet.
This legislation in no way changes the privacy protection for
children on the Internet. And that law, as the VPPA itself, with regard
to its privacy protections and its opt-in requirements, is not changed.
This is simply a modern way for people to be able to communicate with
their friends in ways that are convenient to them and that they already
use and do not understand why, if they can use it with music, with
news, with books, with other forms of communication and speech, that
they can't do it with regard to their movie and television shows.
I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield my colleague from North Carolina
(Mr. Watt) as much time as he may consume.
Mr. WATT. I thank the gentleman for yielding once again.
And in response to my colleague from Virginia (Mr. Goodlatte), we
have in fact been trying to work out our differences. The problem is
that his definition of protecting privacy is not as extensive as my
definition of protecting privacy. And I think my definition of
protecting privacy is more consistent with consumers, because consumers
keep filing these lawsuits to try to protect themselves from the
disclosure of their personal information.
The Electronic Privacy Information Center, which has been at the
forefront of ensuring privacy protections for consumers in the
information age, just last week secured a victory for Facebook users
when its complaint to the Federal Trade Commission resulted in a
settlement requiring Facebook to establish an extensive privacy
program. Analytics Company and Web video Hulu.com have been hit with
another privacy lawsuit over their alleged use of supercookies to track
people.
There is case after case after case of consumers' information being
used, abused, and misused, and here we are making it easier for that to
occur by saying you can give one time--they already have the authority
to release the information when they download a movie now, but this
will give one-time, universal coverage to release everything that I
view on video. And that's inconsistent with what I think is necessary
to protect the privacy of people in this electronic age.
Now, I understand that there are people who have an interest in this;
I mean, there are people who profit from mining this kind of
information. But our interest should be in protecting the rights of
consumers, protecting them from having this kind of private
information--I would think since the original Video Protection Act was
about protecting the privacy of Judge Robert Bork and people going into
his records to review his video viewing privacy, that my colleagues on
the opposite side of the aisle would be the most vigorous in trying to
protect this. But here we are giving in to the interests that will make
money out of this and exposing our children and our own viewing habits
to this kind of intrusive action on our part, and we are doing it
without the benefit of any testimony at a hearing to talk about this.
We should simply not be doing this.
I would like to submit for the Record a letter dated December 5,
2012, from the Electronic Privacy Information Center in which they
aggressively oppose this legislation. They say they are a nonpartisan
public interest research organization.
The Video Privacy Protection Act was passed in 1988, following
disclosure of the private video rental records of a Supreme Court
nominee by a video rental store to a news organization. There was
broad-based support for passage, and the act was signed by President
Ronald Reagan. This act is considered a model privacy act in many
respects. It is technology neutral.
And this bill undermines this Video Privacy Act that was the model
act that was designed to protect a Republican nominee to the Supreme
Court and was signed into law by a Republican President. And here we
are in this Congress getting ready to send a bill over to the Senate--
which hopefully they won't act on; they will save us from our own
ineptitude--which would undermine the key provision of the Video
Protection Act, which is the right of users to give meaningful consent
to the disclosure of their personal information.
This blanket consent, according to the Electronic Privacy Information
Center--and I agree with them wholeheartedly. The blanket consent
provisions transfer control from the individual user to the company in
possession of the data and diminish the control that Netflix customers
would have in the use and disclosure of their personal information.
``While we recognize that other companies routinely report on the
activities of their customers, we note that Facebook users have never
been particularly happy about this. The history of Beacon is well
known--and also that the routine disclosure of video viewing activities
is not something that most Facebook users are clamoring for.''
In fact, Facebook, as we just indicated, just entered into a
settlement of a privacy lawsuit. And here we are on the floor of the
House saying that we value the business interests more than we value
the personal privacy interests of individual citizens.
This is a bad idea. It shouldn't be here on the suspension calendar
as if it's a noncontroversial clarification of
[[Page H8164]]
the law. This is a dramatic undermining of the Video Privacy Protection
Act. We are doing a disservice to our constituents by giving this
authority. They already have the authority to do it on a case-by-case-
by-case basis. It may be inconvenient to the companies to get the
authority given to them that way, but that's the way it should be given
to them, not in some blanket authority that just allows the companies
to go in and use this information willy-nilly and without regard to the
privacy.
I thank the gentleman for yielding again. And I may ask him to yield
again depending on what happens--oh, he says he's not going to yield to
me anymore.
I just think my colleagues should vote against this bill, defeat it
on suspension, and let's at least debate it under regular order on the
floor of the House or send it back to the committee so we can have some
hearings about the privacy implications so we can get this done.
Electronic Privacy
Information Center,
Washington, DC, December 5, 2011.
Congressman Mel Watt,
Rayburn HOB,
Washington, DC.
Dear Congressman Watt: Thank you for your request for
comments from the Electronic Privacy Information Center
(``EPIC'') regarding H.R. 2471, which would amend the Video
Privacy Protection Act (``VPPA''). EPIC had hoped to provide
comments at a hearing on the bill, but as the sponsors of the
legislation chose to push through the legislation without the
opportunity for public discussion, we appreciate the
opportunity to share our views in response to your request.
EPIC is nonpartisan, public interest research organization,
established in 1994 to focus public attention on emerging
privacy and civil liberties issues, We maintain two of the
most popular privacy sites on the Internet--EPIC.ORG and
PRIVACY.ORG--and testify frequently in Congress. We have also
represented the interests of Facebook users over the years in
a wide range of privacy matters.
The Video Privacy Protection Act was passed in 1988
following the disclosure of the private video rental records
of a Supreme Court nominee by a video rental store to a news
organization. There was broad-based support for passage and
the Act was signed into law by President Reagan. The VPPA is
considered a model privacy law in many respects--it is
technology neutral, focusing on the obligations of businesses
and the rights of customers in the collection and use of
personal information. It makes clear the circumstances when
personal information may be disclosed and it provides a
private right of action when violations occur.
The VPPA makes no specific references to particular
technologies. First Amendment concerns are addressed in the
Act by recognizing that when the press seeks to publish
information, Congress may not limit the rights of the press.
However, businesses that collect information from their
customers have an obligation to safeguard that information
and to ensure it is used only for appropriate purposes. As
with most privacy laws, the VPPA contains a consent provision
that allows individuals to disclose their personal
information to others if they wish. There is nothing in the
Act that prevents individuals from so doing.
H.R. 2471 would undermine the key provision in the VPPA,
which is the right of users to give meaningful consent to the
disclosure of their personal information. Such blanket
consent provisions transfer control from the individual user
to the company in possession of the data and diminish the
control that Netflix customers would have in the use and
disclosure of their personal information. While we recognize
that other companies routinely report on the activities of
their customers, we note that Facebook users have never been
particularly happy about this--the history of Beacon is well
known--and also that the routine disclosure of video viewing
activities is not something that most Facebook users are
clamoring for. If anything, most Netflix users seem to be
unhappy about the company's disregard for its customers.
The proposal is particularly surprising in light of the
recent decision by the Federal Trade Commission concerning
Facebook and privacy, which found that when companies seek to
change the privacy defaults of their users, they are
essentially engaging in an unfair and deceptive trade
practice. That would be the practical impact of this
amendment--to take away control of the user's information
after the user had subscribed to the service. There is
nothing in the proposal that would ``modernize'' the Act; it
simply allows Netflix to post more information about the
activity of its customers, whether or not the customers would
choose to post such information themselves.
EPIC would therefore recommend that members of Congress
vote NO on H.R. 2471. Users remain free to disclose their
video viewing habits if they wish; there is no reason to
change the default. EPIC would also recommend a hearing on
the legislation so that all views, both for and against, can
be presented, and Members are provided an opportunity to
fully assess the proposal.
Privacy is the number one concern of Internet users today.
It would be foolish to adopt an amendment that weakens
privacy legislation already in place.
Please feel free to contact me if you have any further
questions.
Sincerely,
Marc Rotenberg,
President, Electronic Privacy
Information Center (EPIC).
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may
consume.
In no way does this legislation in any way undercut the principal
purpose of the Video Privacy Protection Act because the power rests
with the consumer.
{time} 1520
Basically, what this legislation does is it empowers consumers to do
things in the 21st century with regard to their movie and television
viewing, communications with their friends that they already have with
music, they already have with news, they already have with books or
magazine articles that they read; and we should have that kind of
consistency in the law.
The Video Protection Privacy Act remains strong, and its principal
purposes remain there intact; and it has an opt-in requirement, an opt-
in requirement that anyone who wants to avail themselves of this
convenience has to give informed concept to do so.
I urge my colleagues to support this very bipartisan legislation. It
has strong support on both sides of the aisle.
I have no further requests for time, and I reserve the balance of my
time.
Mr. CONYERS. Mr. Speaker, I am pleased to yield the remainder of my
time to a distinguished magistrate from Georgia (Mr. Johnson), now a
member of the Judiciary Committee.
The SPEAKER pro tempore. The gentleman is recognized for 2 minutes.
Mr. JOHNSON of Georgia. Thank you, mister ranking member.
Mr. Speaker, I rise today in opposition to passage of H.R. 2471. This
bill will make it easy for video producers to be able to sell to others
information that consumers may feel is private.
Now, I, myself, don't want folks to know that I have ordered up
``Debbie Does Dallas.'' I may not mind if they know that I ordered up
``J. Edgar,'' but I don't want them to know that I ordered ``Good Girls
Gone Bad.'' And on behalf of Judge Robert Bork, I certainly wouldn't
want anyone to be able to uncover the fact that he's been ordering up
relentlessly the film ``Bad Boys of Summer.''
We have a right to privacy, and that right should not just be given
away without adequate knowledge on behalf of the consumer what they're
giving away.
This bill has proceeded to the suspension calendar without any kind
of hearing before the Judiciary Committee on whether or not the bill
should be marked up or not. We have not heard from experts. We don't
know what kind of waiver by Internet, we don't know the mechanics of
that waiver. We don't know how easy it will be to waive your right. It
could be as easy as waiving your right to a jury trial in a cell phone
contract. For those reasons, I ask that this bill be denied.
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may consume
just to say to the gentleman from Georgia that I have good news for
him. There is absolutely no way that anyone can, under this
legislation, find out any of his video-viewing habits unless he
consents, with informed consent, with a separate consent to allowing
that information to be made known to anybody.
Again, this legislation makes good sense. It's what consumers want in
the 21st century. It's how they share their information online. And
those who don't want to share their information this way do not have to
give this consent. Therefore, this legislation, I think, strikes the
right balance.
I urge my colleagues to support the legislation, and I yield back the
balance of my time.
Mr. CONNOLLY of Virginia. Mr. Speaker, I rise in support of H.R.
2471. This bill would update the Video Privacy Protection Act by giving
consumers the ability to use social media to discuss movies they have
been watching. When it was passed in 1988, internet social media did
not exist, and the law needs an update for the digital age.
This legislation explicitly prevents businesses from using an ``opt
out'' mechanism
[[Page H8165]]
which businesses might abuse to consumers' detriment. Instead, it
requires that consumers proactively choose to share their movie
preferences with their friends. For this reason, the Future of Privacy
Forum, a consumer advocacy group, supports this legislation.
This update ensures that consumers can use existing social media
outlets to discuss movies they have watched. It may also contribute to
the health of the movie industry by integrating it more fully into new
modes of internet communications used by consumers.
I applaud my colleague from Virginia, Mr. Goodlatte, for his work on
this legislation and urge my colleagues to support it.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Virginia (Mr. Goodlatte) that the House suspend the
rules and pass the bill, H.R. 2471, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. WATT. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
____________________