Mr. CATE. I would just like to say, sir, I agree with that, but let me point out that nine million new businesses went online in the past 6 months and opened new web sites. It is an evolving set of issues and behaviors, and we're seeing a dramatic change in who populates the Internet and what services are there. It's unreasonable to talk about the Internet as an it, as a singular thing. It's suggesting we call the Internet one thing and the rest of the world some other thing. There are a lot businesses in the world I wouldn't do business with. When a guy in New York on a street corner offers me a Rolex for $20 I don't do business with him, and when he asks me questions on the Internet, tell me your health information on the Internet, I don't give him that either. And I think to try to create laws to respond to that sort of corner of commerce while we see the rest of it developing in a different way, in a way that I think the FTC is pushing the Department of Commerce to pursue Mr. DELAHUNT. Maybe it's the accessibility of it though. I mean there is something different. This is not walking into a store with having had a history for most of us. This is something that really is so new that we do view it differently. Mr. Rotenberg and Ms. Mulligan. Mr. ROTENBERG. If I may say, Mr. Delahunt, I agree with what you say and I think it is the sense that many of us today have about the Internet, but it's not the first time that people in this country have had that sense about a new technology. People had a very similar sense when the telephone first became available, and suddenly we had the ability to communicate instantly with family members and friends and business people all around the world. That was a radically new understanding of time and space and what technology made possible. And it was interesting also that shortly after the development of the telephone Graham Bell developed techniques to encode the information so the technical means would be available, and Congress passed laws to protect the privacy of the communication. So it's new in one sense, but in another sense it's very familiar. Mr. DELAHUNT. And there was a Congressional response. Mr. DELAHUNT. Ms. Mulligan. Ms. MULLIGAN. To build upon that, Professor Cate said that as the technology is evolving we don't know what people's reasonable expectations of privacy are, and I think that's the wrong way to think about it. I think that our job is to make sure that people's expectations of privacy, which I would say are a fairly constant thing and I don't think they change necessarily, that we have to make sure that new environments don't expose people to unreasonable risks. I think that is the job of both the Administration, selfregulation and this Congress. Mr. CATE. If I may just respond to that briefly, sir. Mr. DELAHUNT. Professor. Mr. CATE. To a certain extent that doesn't make any sense in the current environment because we currently go into businesses and provide data which, as we've all testified, is freely bought and sold. So the expectation, if it does not change, should be when you act on the Internet that data is freely available as well. So if we're not going to inquire into what the specific expectation is, we would have to assume that the expectation is that the open market for information, which has supported markets and vigorous press and other institutions, is also going to apply on the Internet. Ms. MULLIGAN. I think that might be a shared expectation of people like me and Marc who know what happens. Mr. DELAHUNT. That is exactly the point. Ms. MULLIGAN. When I was sitting around the living room last night with my neighbors and housemates they had no expectation that Kenneth Starr would be able to walk in off the street and get access to records of the books that they purchased, and that was not a welcomed realization for them. Mr. DELAHUNT. I would just say, Professor, I think Ms. Mulligan has really struck a chord with me because I think most of us, and I dare say even the chairman, we don't deal every day in the Internet. There is a generational issue here too. So we're talking about understanding, if you will. I mean there is a cultural transformation going on here as well in terms of expectations that I think maybe a discrete segment of our society is able to understand and comprehend, but the vast majority of consumers, the patient who walks into the doctor's office, really doesn't have a clue, and I dare say a lot of doctors don't have a clue. Just one man's opinion. Mr. COBLE. Well the gentleman from Massachusetts said it's a generational problem, and that even the chairman may be involved. Mr. Delahunt. Folks, I want to thank both panels for their testimony, I want to thank the members of the subcommittee for their input, and the very attentive audience for your patience during this hearing. It has been a good hearing and it has directed attention to an area that is in dire need of attention. Now, folks, it's not likely that Congress will do anything in a tangible way this session. We may never do anything in a tangible way but, on the other hand, circumstances may dictate that and require it. This concludes the oversight hearing on the privacy in electronic communications. The record will remain open for 1 week. So if additional information is forthcoming, and if you have another night as you had last night, Ms. Mulligan and something comes to you, within the next week feel free to submit it. Thank you all for your attendance. The subcommittee stands adjourned. [The subcommittee adjourned at 12:10 p.m., subject to the call of the Chair.] APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD ONE HUNDRED FIFTH CONGRESS HOUSE OF REPRESENTATIVES MEMORANDUM TO: Members of the Subcommittee on Courts and Intellectual Propery Barney Frank, Ranking Member RE: Oversight hearing on privacy in electronic communications On Thursday, March 26, at 10:00 am in Room 2237 RHOB, the Subcommittee will conduct an oversight hearing on privacy in electronic communications. In particular, the testimony will center around privacy over the Internet, privacy in electronic telecommunications, and whether and to what extent changes in the law or government regulation is necessary. Enclosed please find two CRS reports (97-833A, 92-959A). They both contain a comprehensive discussion on the issues that will be the subject of the hearing. PREPARED STATEMENT OF HOWARD COBLE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA, AND CHAIRMAN, SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY Today, the Subcommittee will conduct an oversight hearing on privacy in electronic communications. This hearing was suggested by the Ranking Member of this Subcommittee, Mr. Frank, and I am pleased to begin exploring this very important issue. In the technologically advanced world in which we live, privacy in electronic communications is of vital importance to individuals and businesses. The ability to intercept, descramble and eavesdrop on private electronic communication over the Internet and cellular and digital communications places the privacy of individuals and businesses in jeopardy. That it turn, deteriorates the incentive for individuals and businesses to engage in electronic commerce, and as a result stifles the growth of American business. It also places the fundamental right of individuals to keep personal information private at risk. I look forward to an informative and educational hearing. (99) |