fact that someone may happen to be a customer of a video service, there should be few restrictions on disclosing that fact and the privacy protection was an opt out and congress said that if the company wants to disclose the fact if a person was interested in mystery movies or action adventure, companies in those circumstances as well, could disclose those facts simply with the opt-out producti protection. but when it came to the actual titles of movies that would reveal so much about a person's interests and rights, congress said that should be opt in. if a person chooses to disclose that information, they should be free to do so and the act allows for it. i want to say very directly to netflix that this argument that they are making that this law somehow stands in the way of

integration with facebook is simply not right. they have the freedom today under the law to note when netflix users are using netflix services and they can go to the next step. what the law tries to do is try to establish a line why the company wants to say, this is a movie that a consumer is now viewing, and that is where the government says you must get consent. i believe that house members that voted for the bill do not fully understand the consequence of the amendment. it's not just the friends of that individual, to whom the specific movie viewing will be disclosed it's also to netflix business partners and also potentially to law enforcement. because what netflix is asking users to could is provide a

blanket consent that gives them the opportunity to disclose specific movie viewing to any party under any circumstances that netflix chooses to. this knocks out the corner stone of the act. it takes away the key provision that was put in place to give users meaningful consent. obviously i could not think it will support online privacy frankly i do not think that netflix users want this provision, i do think changes can be made to modernize it and update it and it should be applied to all streaming services. i think that data destruction provision needs to be coupled in and i would like to see more transparence so that users know how their personal information is being used and that the companies should be required to encrypt the data.

that would update it and allow the users to use a viable service. thank you. >> thank you. >> thank you chairman franken. my name is christopher wolfe. i'm a privacy advocate. as part of my work i won a leading case against the gocht f -- the government for violating a privacy act. and i founded and cochaired a think tank with advisory board members from business, consumer advocacy. fundamentally, privacy is about control. indeed a principal goal of privacy law is to put choices and decisions in the hands of informed consumers with the advent of video streaming and social sharing the protection act stands in the way today of

the consumer's exercising control and limits their choices and even limits free expression. the vppa enacted a quarter of a century ago was designed to prevent prying into consumer's rental history. indeed the purpose was to give control and choice to consumers. to let the consumers decide whether and how to share their video watching information. in 1988 when the vppa was put in place, no one dreamed of social sharing and streaming, so when that law is read in this medium, it can frustrate the consumer. for many people, automatic sharing is how they share ideas

peculi . facebook utilize a one time option a durable sharing option. take a person that is a video watcher watching 100 short videos per week, she wants to share every video she watches just as she shares every song she listens to and as she shares every item she reads online through a facebook social sharing app but current law suggests that she is not fit to make this decision. should this video file have to opt in 100 times a week. does it do any service other than to annoy her. the constant interruption hails back to the time when pop ups

had to be clicked on every time. in contrast to the restrictions of the vppa, there are no legal restrictions for her to share every e-book. she can share the fact that she read the book but the law stands in the way of her sharing the fact that she watched the movie. that makes no sense. of course, not everyone wants to share their viewing experiences with their friends online and they do not voluntahave to shar. if a person wants to share on a case by case basis, they can do so manually. similarly a person that chooses to share on a continuous basis can disable the share function before watching the streaming video that he or she wants to exclude. in order to clarify the uncertainty of the language to

vppa on disclosure i support an amendment such as hr 21.71. i agree it a best practice that the durable oppose should be opted in. that is genuine consent. i join the seidea that this wil not under mine the purpose of the vppa. people should as a matter of free expression be able to share as they choose and companies should not face legal penalties for providing them with that choice, as governments around the world including our own consider ways to improve the privacy frame works there are big decisions to be made as senator watt pointed out. starting a process in the name of privacy protection through which lawmakers decide case by

case, what information can be shared seems terribly ill advis advised. thank you for the opportunity to appear here today, i look forward to your questions. >> thank you mr. wolfe for your testimony. let me ask, start with professor mcgevern because i want to make a few things clear about what this bill widoes and does not d. i talked about what the video privacy protection act does and i want to talk for a moment about what it does not do. a lot of people have been saying that the video privacy protection act actually

prohibits people from sharing their viewing habits on social networking. in fact one article said that quote, an old bill called the video privacy protection act forbids the disclosure of one's video rental information even approximate the renter is okay with the disclosure. is that right, professor mcgevern? does this law prevent, and i'm talking about the vppa from integrating in to social networks even if the consumer wants them to? >> no. that is not right. the statute requires consent every time. but as i mentioned in my opening statement that can be done by simply saying here is a press when you press to play the movie. and right next so it, here is a button to both play and share.

you can post, you just have to be asked every time you see a movie. online that seems easy to effectuate >> so it would be easy to say i can share. mr. wolfe talked about it would be really easy to disable the sharing but is there anything in the amendment that says how that would happen? i mean, could a online video company, one less scrupulous than netflix, just have it really hard? is there anything in the law that would prevent them from making it almost impossible to figure out how to disable it? >> so in the house bill the way it's set up now, it says, you could enable consent until you took it away. but there's nothing in the bill that gives any requirements about how that would be done. mr. wolfe mentioned some best

practices, most companies would make it easy, but this law will not just apply to companies that we believe are going to do the right thing and it does not -- the company could have no button or access anywhere on it website to could this and no explanation on the website that you the right to do it and it would be up to the consumer to figure on it and the house bill allows that kind of an arrangement. >> i want to make that clear, to opt in to sharing a video, what movie you are watching, would be no more burdensome than watching the movie. however disabling the overly all content to watch everything could be impossible to find? >> right.

>> do you agree with that? >> i think it's an important point, senator, but also -- what professor mcgeverm said there are ways to let individuals click, play and share, there's the integration and there's the disclosure. but the point that you are making is under the house approach, once you have play and share stuck, that but onseting it may be difficult to unstick, there's not in the proposal that would make it easy to withdraw the consent. >> thank you. mr. heimann, there's no company that better shows promise in streaming than netflix. today 90% of netflix 24 million subscribers have streaming subscriptions, and 40% have dvd

sub is descriptions and that number is dropping. in fact, if you look at the about us netflix, there's only one mention of dvd. there's a question whether the streaming videos are covered by the vppa. it was suggested that it would be helpful to change language in the vppa to confirm that it does. would netflix support doing that? >> mr. franken, netflix would probably not -- we would not support that. i think the issue for us is really one of what is video in the future and how do you think about that in the internet age.

video embedded into news stories, is that a news story or is that streaming video? music videos, is that music or is that videos, books. i recently read a book and it has a texting powerpoint presentation, you can imagine that in the future books will integrate video. is that covered? so extending the video protection privacy act into the internet raises a host of issues and i think there's a host of our players that need to be involved in that, a wholistic approach would be something that netflix would be involved in, but just saying it applies to

streaming, opens a whole hoetstf issues that need to be addressed. >> i do not think this amendment is comprehensive at all. you raise a lot of great issues about this, but it seems to me to say that since the vppa applied to what we think of as movies, right, movies are going to be streamed. they are going to be. >> they are. >> so that this law, it seems like that you need to apply streaming to hthis, and i'm troubled by your trying exclude streaming at all. anyone have anything to say about that? >> mr. chairman, i think that perhaps, the advocates of that approach are drawing the wrong line the vppa was not trying to regulate technology. it was not trying to say, we

will treat video rental in one way and others in a different way. it says similar materials should be treat ed in a similar way. what the act is doing is regulating the collection of personally identifying information and the reason you need to do that is because when you move from broadcast of television and movies to a one to one service offering, these companies are collecting a lot of information about the k customers. if you are going to collect that data, then you need to protect. and as we think of the new techniques, companies are collecting more information than they did 25 years ago, so i think that the idea at this point in congress would be to strengthen the law recognizing how much more information is collected. >> thank you, we will go to another round, i ran over my

time. so go to the ranking member. mr. coburn. >> first of all, let me thank you for your testimony. i learned a lot from what you had to say. and i'm prone to agree with the chairman on his concerns about this bill. as i look at it. and i really don't see a big difference from granting permission one click at a time to a blanket consent, but i also think prudence in the protection of privacy should be guiding us. no question, netflix with their policy throughout the rest of the world that is not available here to online consent for that, gives them an asset, my asset,

my privacy asset that i have readily given to them if i have one of those that grants a blanket consent somewhere outside this country where i am giving them something of value that they can use and make money off of. i'm not sure, i'm torn between whether we have the right to tell somebody whether they can grant a blanket consent or not. i don't know that that is our role. but i know it our role to be concerned about the ultimate privacy protection that individuals deserve. so, i would go back and i would ask the professor if he would give us a further statement on what he thinks or means by the word genuine consent. >> thank you senator coburn and the idea behind general -- genuine consent is that it thought out. we are helping a consumer to

post the information that he or she wants to post. i may have more sympathy in changing the existing vppa if i thought it made it difficult for people to do that. i think that recommendations of movies to our friends are valuable. i learn a lot about movies i would like to see by hearing about them word of mouth from my apprehe friends, but what we have online is the capacity to make it very easy to secure a decision each time from the user. to say, yes, i do intend to share this information now about this movie now. and the ability to say it for all movies in advance, we are not actually inconveniencing the user very much in an era where you push one button or the other. s so i would say genuine consent

is to make sure it's intentional. >> if you go to dallas wifi, every three pages of very fine print to say you agree to consent. >> well, i have, but that's my job. >> but you're a rarity. >> i am. >> the fact is, what you're saying is, what's wrong with making a considered judgment each time? >> exactly. >> mr. wolf? >> senator, i think you pointed out, the problem with that, when consumers are presented with choices over and over and over again, they tend to tune them out and will ignore them and they will have no meaning whatsoever. they'll just click through it to get to the function that they want to exercise. >> well, let me bring it back to this point. if the question that comes up on my ipad is, do you want to share this information through your social media and i have to say yes or no. the question, that's all that's going to be required

for netflix so if i'm looking at a one-line statement which is very different. so if i'm looking at a movie. an arnold schwarzenegger movie which my wife hates, but i love the action in them, and i'm going to make a decision that i want everybody to know i'm watching arnold shz. schwarzenegger. it's one sentence. i'm going to have to make that decision. why is that not protecting their rights rather than a blanket, forgot about it, hung over from the night before and not thinking clearly. i punched a button on something i really don't want shared. the question is, should we error on the side of privacy or on the side of confidence. and that's the thing we have to decide. >> i actually don't think that's the choice. if a consumer wants to share

everything on their facebook page, as they most do, it's not a choice that you or i might make, but a law that takes away that choice really ignores that there are people who want to do that. as long as they are informed of the consequences of doing that and i agreed with the professor that the opportunity ought to be just as easy to opt in, then i really don't see how it's the business of congress to dictate and i'll leave this to mr. hyman but there are some devices that someone can access netflix through where you can't have that button and there is a rub and the argument isn't simply that we're going to take away somebody's right to share. >> the paint is, there is a rub. there is a rub. and the argument isn't simply that we're going to take away somebody's right to share.

and it's not being a big brother. i'll go back. i believe the decision is between protecting privacy and promoting commerce. and i this we ought to be able to figure how to do both. >> my fundamental point. privacy is and has all along been giving people the choice to control their information, and who sees it and how it's disclosed. >> so -- so there's no limitation to that choice, if i get to make that choice each time. you still are giving them the choice. actually had reference to the testimony that some think that the ability ought to have a choice each time. is that not true? did i not get that inference from your statement? mr. -- >> no. not set up compliant to the vppa if it were video, because your scroll of songs is sent out to all your friends automatically. >> yeah. but the point is, was it not

your inference that you thought maybe people ought to be making decisions on that as well? >> that's right. i think a -- same thing. press a play button for a song. you should be making a choice time by time, whether that's something that goes out. >> the question is, how big of a choice do you make and whether you reconsider it. the question i would have, technically is, if i opt in for all of it, each time netflix brings me a movie, do i have the option to opt out of that? in other words do i have a default but than goes out? >> again, the opt out option ought to be easy. there are people who have web cams and leave them on all the tile. some think that's ill-advised, over-sharing, invades privacy. match an law, webcam turned off once every 24 hours and you have to make the choice to turn it back on it. that has never been the business of congress, privacy about allows people that choice.

>> again, i don't say your arguments don't carry large weight. i'm just saying in terms of effectuating the protection of priva privacy -- where's the details on the opt out? it's not in there. >> that needs to be specified. i caution against the slippery slope making available every kind of information every time people share. >> you've got to make a choice is what we're saying. >> but only the choice you want them to make. not the choice available -- >> no, no. two choices. opt in or opt out. the point is you've got to still make the choice with your privacy, and i think there's a legitimate concern that if you opt in, will you have the same presence and available information to opt out?

so the question i would have of netflix is, if you have this, or where you have it in europe, does somebody every movie have an opportunity to opt out? >> on the current implementation in europe there's an opt out don't share opportunity. every time that -- as mr. wolf pointed out, certain devices, because technologically don't is a tort that, not available on every device. through the computer on every device an you can unshare afterwards. the impmentation we made, start the movie, presumption, sharing. there's a don't share but ton click afterwards. right when the movie starts, anytime you deal with the movie, you can elect to not share, and then after the movie is displayed on facebook you can go back, adjust your setting to unshare are that. also sharings you can do on the facebook side. >> here's my question. what's the difference between an unshare opt out and a share opt out? they're both asking the same question. one's presumption, you're going to share all the time, but still

making a decision each movie. unshare or not unshare. >> one is opt in and one is opt out. >> yes but the point is the decision for privacy is still made individually on every movie they send down the stream. so what's the difference? of having an opt in or an opt out? if the feature whole sargent they have the same thing. >> it doesn't -- i don't think it should be a matter of law. >> i was going to echo. that's our implementation under the hr 2471, that's not required under law. we've done it because we believe that's what keeper e consumers . the issue at the highest consent. everyone on the panel agrees philosophically making sure consumer, understand what information they are disclosing or how their information is being handled. so at the high level i think we are all coming to it from the same approach. there's a philosophical difference in some way you

highlighted, is it opt in, opt out or -- how does congress control the way in which consumers can share, or are available to share? the presumption we're trying to advocate for in connection with supporting hr 2471 is that it's really within the consumer's control toll elect to do that if they so desire. it's an opt in mechanism and one they should be able to get informed consent. there's a question on this panel whether or not consumers can ever give informed consent. on our side we would take the position, yes, consumers can give informed consent, and in fact under the legislation, there is specific opt out so that the not buried in some terms of use, which we're are in support of. so the issue about -- >> privacy is so important and if everybody at the table supports that, what's the-what's wrong with having a reminder you're sharing your privs ji if it's that much of a value. if personal property and privacy rights are that important, what

is wrong with having a reminder that you're giving away your privacy rights? if it's a valuable to be protected, if it's a virtue to be protected, your privacy, then what is wrong with the government saying, there should be a reminder that you're giving your privacy away? what is wrong with that? >> you know, there ought to be reminders, and government ought to support education of consumers through cyber education of kids to tell them what harm they might do themselves online by sharing tmi, but the number of reminders one would need every day would be in the thousands. >> i don't need any reminders because i don't share anything. >> you're sharing your ideas right here, senator m. >> the point, under the ethics law i have to fill out forms every year and give that as a part to participate in the senate. certain thing ice have to do, part of my responsibility. but the point is, if privy