Hearing on "Privacy in the Digital Age: Discussion of Issues Surrounding the Internet"

April 21, 1999

Concern over privacy is reaching an all time high. In 1978, 64 percent of Americans reported that they were "very concerned" or "somewhat concerned" about threats to their personal privacy. By 1998, this number had skyrocketed. According to the Center for Social and Legal Research, 88 percent of Americans reported being "very" or "somewhat concerned" about threats to their personal privacy. I am pleased the Senate Judiciary Committee is taking this concern seriously, and beginning an examination of new Internetrelated privacy issues.

Good privacy policies make good business policies. New technologies bring with them new opportunities, both for the businesses that develop and market them, and for consumers. It does not do anyone any good for consumers to hesitate to use any particular technology because they have concerns over privacy. That is why I believe that good privacy policies make good business policies.

Protecting privacy plays an important role in the exercise of First Amendment rights. Ensuring that we have adequate privacy laws has a more significant and important role in our democracy than just fostering hightech businesses. We also must defend of online freedom from heavyhanded content regulation. That was my purpose in voting against the unconstitutional Communications Decency Act that became law in 1996.

Stopping efforts to create government censors is critical to allow our First Amendment rights to flourish, but it is not enough. For people to feel comfortable in exercising their First Amendment rights by speaking, traveling and associating freely online or in physical space they must be able to keep their activities confidential and private. When Big Brother is watching, the exercise of First Amendment rights is chilled no less than the threat of a government censor.

It is therefore not surprising that our country has a long and honorable tradition of keeping our identities private when we exercise our First Amendment rights. "The Federalist Papers," which is probably the most important political document ever written about our Constitution, was authored anonymously by James Madison, John Jay and Alexander Hamilton and published under a pseudonym.

Healthy advocacy and debate often rests on the ability of participants to keep their identities private and to act anonymously. Indeed, the Supreme Court has said, "Anonymity is a shield from the tyranny of the majority."

Healthy commerce also depends on satisfying consumers' desire to keep their business affairs private and secure. A report I released last month on Vermont Internet commerce is telling on this point. The strongest obstacle among consumers from shopping and doing business online was their fear of the online security risks. This is why promoting the use of encryption is so important, so that businesses and consumers can use this technology to provide the privacy and security they want and that best suits their needs.

I plan to introduce privacy legislation to ensure that Americans' Fourth Amendment rights to be secure in their persons, houses, papers and effects against unreasonable government searches and seizures are given ample protection in a networked computer environment. In addition, several provisions in the bill will address the concern Americans have about the use of their personally identifiable records and information by businesses, satellite carriers, libraries and book sellers.

Industry selfregulation efforts should be encouraged. In contrast to a citizen's relationship with his or her government, consumers have a choice of whether they want to deal or interact with those in the private sector. In my view, this choice should be generally recognized in the law by allowing consumers and businesses in the marketplace to set the terms of their interaction. This is an area where the Congress should tread cautiously before regulating. Online businesses are engaging in serious efforts to make available to consumers information on privacy policies so that consumers are able to make more educated choices on whether they want to deal. I commend and applaud those efforts.

That being said, however, current laws do not apply privacy principles in an evenhanded manner. Video rental stores and cable operators are subject to privacy laws to protect our right to keep our viewing habits private, but no protections exist for the books we borrow from the library or buy from a bookstore, or the shows we watch via satellite. I am introducing a bill to provide more uniform privacy protection for both books and videos, no matter the medium of delivery.

Similarly, telephone companies and cable operators are subject to legal restrictions on how they may use personally identifiable information about their Internet subscribers, while other Internet and online service providers are not. The ERIGHTS bill I am introducing would promote a more level playing field in terms of the privacy protections available to Internet users, no matter whether they obtain their Internet access from AOL, their cable company or their local phone company.

This legislation addresses a broad range of emerging hightech privacy issues. For example:

• When should the FBI be allowed to use cell phones to track a user's movements?
• Should Kosovo human rights organizations that use Web sites to correct government misinformation be able to get domain names without having their names publicly available on a database? Should we have the same ability to get an "unlisted" domain name (or Internet address) as we are able to get an "unlisted" phone number?
• Should we allow other federal prosecutors to act like Special Prosecutor Kenneth Starr and go on fishing expeditions with subpoenas issued to bookstores to find out what we are reading? Should we protect our choices of reading and viewing materials the same way we protect our choice of videotapes that we rent from our local Blockbuster?
• Should people who maintain their calendars on Yahoo! get the same privacy protection as those who keep their calendars on their desk or on their PC's harddrive? Will people avoid certain network services offered by Netscape or new Internet startups because they get less privacy protection for the information stored on the network than on their own PCs?