[Congressional Record (Bound Edition), Volume 157 (2011), Part 13] [House] [Pages 19013-19017] [From the U.S. 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times-- ``(i) the time the disclosure is sought; and ``(ii) in advance for a set period of time or until consent is withdrawn by such consumer;''.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 through the Internet and can be withdrawn at any time. Finally, thanks to an amendment from the gentleman from New York, [[Page 19014]] 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 [[Page 19015]] 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 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 [[Page 19016]] 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 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, [[Page 19017]] 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 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. Mr. CLARKE of Michigan. Mr. Speaker, today the House of Representatives is considering H.R. 2471. H.R. 2471 would amend the Video Privacy Protection Act (VPPA), a 1988 law that prohibits video rental stores from disclosing a consumer's rental history. Currently, the only way such information can be shared is with the consumer's written consent each time the video tape service provider wants to share their information. H.R. 2471 would allow video tape service providers to obtain a consumer's consent on an ongoing basis and that consent may be obtained through the Internet. In recent years, the Internet has changed how we share movies and other media. This is why I originally supported the bill. Ultimately, I am voting against H.R. 2471 because the bill could undermine the key provision of the VPPA which is the consumer's right to give meaningful consent to disclose their personal information. H.R. 2471 transfers control from the consumer to the company in possession of the data and diminishes consumer's control over their personal information. 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. ____________________