A small wave of legislation -- most recently passed in the Maryland legislature and pending in the D.C. Council, in the Pennsylvania legislature and in the U.S. House of Representatives -- would make it illegal for a video store to give out the names and rental records of its patrons. The laws have been nicknamed "Bork bills" because they were prompted by a weekly newspaper's account of Judge Robert Bork's video rental history during his confirmation hearings to the U.S. Supreme Court.
The incident greatly upset my father and our family at the time. Although the reporter discovered only a predilection for Alfred Hitchcock and Cary Grant pictures, it was just another example of how his privacy was being trampled in the media. Others included reporters and photographers in his driveway and motorcycle tails by the television networks.
However, the incident was a rarity. In fact, supporters of the legislation cannot cite another case where the video rental records of a well-known person had been obtained and published. (An attempt to get Oliver North's records was fruitless.) A spokesman for Erol's video stores tells me that in its seven-year experience, and after 80 million rentals, there have been only one or two attempts by reporters to get customer records. None was successful.
That's not to say that reporters won't add this investigative tool to their aresenal; undoubtedly they will, and the number of attempts will rise. I am not confident, however, that a law making the release of this information illegal will make much difference. In my father's case, the owner of the video store already had a policy forbidding such disclosures. A young, part-time employee simply ignored the owner's directive. Slapping the threat of a fine on the store probably won't impress most teen-agers.
The bigger problem is, I think, that the media since Watergate have had little regard for personal privacy and what laws there are to protect it. How can the press be expected to worry about a local ordinance when it has argued that far more sensitive national security records are fair game? In my 10 years as a journalist, I often have heard colleagues argue that the public's "right to know" gives them warrant to seek and disseminate private information. To do it, some even have felt justified in lying about their identities. Most, of course, don't endorse such extreme techniques. They, like the reporter at the Oct. 12 press conference announcing the District's proposed video privacy ordinance, believe they simply are entitled to information. The reporter asked, "Don't you think we have the right to a public person's records?"
Indeed, several years ago Lyle Denniston, Supreme Court reporter for the Baltimore Sun, said on a PBS program that he would steal records if given the chance. On the same program, my father noted that the First Amendment has taken on a curious resemblance to a trespassing regulation: a reporter caught stealing records while inside a government building could be tackled and have the documents forcibly removed from his possession, but that once outside he could claim a First Amendment protection.
The only thing that will have a deterrent effect will be the public criticism of journalists' invasive practices by responsible and influential authorities. That does not seem to be forthcoming. For example, the American Civil Liberties Union had the perfect opportunity in the Bork case but blew it. Yes, the ACLU made a big show during the Bork hearings of condemning the invasion of the judge's privacy. And a staff attorney helped draft the House bill sponsored by Rep. Al McCandless (R-Calif.). But the ACLU in its letter to the editor of the offending newspaper denounced only the store for leaking the information. It did not chastise the reporter or the paper for perpetrating the raid into Judge Bork's privacy.
Ironically, these same two groups -- the press and the civil rights community -- that were hounding my father about what they perceived as his lack of sensitivity to privacy rights were in the first instance willing to violate his privacy and in the second unwilling to be critical of the assault.
These laws will have some usefulness: I am told by the sponsors of the various video privacy laws that they will add to the average person's protection in criminal and civil cases. For example, persons involved in child custody battles would not fear that their veiwing habits might be used to determine their fitness as parents. This seems reasonable to me, as such information easily could be misconstrued.
But as a measure to protect public persons from unreasonable intrusions by the press into their private lives, I am afraid these new laws are irrelevant. -- Robert H. Bork Jr.