The Surveillance Scandals

07.11.13

‘Terms and Conditions May Apply’: The Death of Privacy

A new documentary, ‘Terms and Conditions May Apply,’ suggests our privacy problems are much worse than mere NSA spying. Lloyd Grove talks to the film’s director about an ignored reality of modern life: nothing is safe.

What a moment for being “shocked, shocked”!

The furor surrounding whistleblower Edward Snowden’s blockbuster revelation that the National Security Agency is snooping on supposedly confidential communications is beginning to resemble Captain Renault’s “discovery” of gambling in Casablanca.

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Facebook's Mark Zuckerberg has been at the forefront of a movement purporting that the idea of privacy is old-fashioned. (Kris Krug)

The NSA’s eavesdropping on American citizens has been a matter of public record at least since December 2005, when The New York Times reported that the super-secret agency had launched a domestic warrantless wiretapping program, of debatable legality, in the immediate aftermath of 9/11.

Yet it hasn’t, until now, been a widely held concern, maybe due to an American tendency to collective amnesia and a general willingness to give up a measure of personal privacy—and even some Fourth Amendment protections—for the sake of thwarting terrorism. Terms and Conditions May Apply, a documentary that opens Friday, July 12, in New York and additional cities in coming weeks, could change all that.

The film argues that the threat is worse, and more troubling, than mere NSA spying on U.S. citizens. Rapid advances in technology are giving corporate behemoths like Google, Facebook, and Amazon the ability to strip-mine vast amounts of deeply personal data for profit (and to share, on occasion—warrant or otherwise—with curious government agencies), leaving the average citizen naked and vulnerable to a predatory new world of capitalist robber barons and so-called Western democracies that in fact are potential tyrannies. 

The movie’s mouthful of a title refers to the interminable legalese to which all but a tiny few Internet users thoughtlessly click their agreement. “Who the hell reads the terms and conditions?” demands one of the bratty schoolchildren in the animated satire South Park (the documentary makes deft fair-use of countless pop-culture touchstones). It turns out that the verbiage is carte blanche to loot and plunder the most intimate details of consumers’ personal and business lives and then use the information to target them like the proverbial fish in a barrel. 

In a bit of winking mischief, a British retailer, GameStation, managed to get 7,000 customers to agree to terms and conditions that stated: “By placing an order via this Web site you agree to grant us a nontransferable option to claim, now and for ever more, your immortal soul.” In exchange, customers are permitted to enjoy the amenities of apparently indispensable online services—hardly a prudent trade. 

“The movie asks the question: is privacy dead? And answers: if it’s not dead yet, it’s surely on life support.”

The movie asks the question: is privacy dead? And answers: if it’s not dead yet, it’s surely on life-support. Documentary director Cullen Hoback, who appears in and narrates the 80-minute film, says he found the loss-of-privacy issue so alarming that he and his colleagues spent $150,000 (Hoback is still $45,000 in the hole on his personal credit cards) and two solid years (including 2,700 hours in the editing room) to produce this witty, entertaining, and ultimately chilling documentary about a usually ignored reality of modern life.

“In the early days—say two or three thousand years ago—there were no real means of surveillance,” Hoback told me. “So the fear of God, being the all-knowing, ultimate surveillant, really kept people under control as a society … We’ve moved away from that, and instead we’ve moved toward a surveillance state that can control the population by listening in on what people are saying, doing and, eventually, thinking.”

Indeed, not even the constitutional prohibition “against unreasonable searches and seizures” holds much sway these days. According to an ominous legal theory known as the “third-party doctrine,” if you agree to a company’s terms and conditions, that company can provide your data to the FBI, CIA, or the NSA, without a warrant or court order, and you’ll be none the wiser. 

It turns out that nothing, absolutely nothing, should carry the expectation of privacy. Technological innovation and the proliferation of cellphones, tablets, and other basic tools of modern life, give governments and companies the ability to extract, analyze, and indefinitely archive every single oral communication, text, key stroke, search term, website visit, and any other digital transaction that every single citizen has ever made. “Anything that has been digitized is not private,” techno-rock musician Moby notes at one point in the film, “and that is terrifying.” 

At another point, Moby—one of Hoback’s more compelling expert witnesses—discusses the perils of Facebook, on which 1.11 billion users worldwide, including 166 million in the United States, are apt to confuse the constantly evolving default privacy settings and accidently share with the planet such nuggets as: “I am no longer married because I was a dumb ass and I cheated on my wife” and “damn hemroids!!!! [sic].”

“It almost becomes a question of what’s the less forgivable sin,” Moby says, “having this crazy one-night stand or not knowing how to use Facebook properly?”

Facebook founder and CEO Mark Zuckerberg is prominently featured among the privacy robbers (at one point Hoback confronts him on the sidewalk in front of his Menlo Park, California, house—Zuckerberg pleads with him to turn his camera off), as is Google chairman Eric Schmidt, who bitterly, and without irony, complained when CNET, the online subsidiary of CBS, posted aerial photos of his opulent estate. It was Schmidt, of course, who memorably dismissed people’s privacy concerns this way in a television interview: “If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place.”

Terms and Conditions May Apply is at once clever and comprehensive in its chronicle of the erosion of privacy and such disturbing consequences as the jailing of an Irish tourist because of an obviously humorous tweet about “destroy[ing] America” and the arrival of a SWAT team at a comedian’s New York apartment because he quoted a line of violent dialogue from the movie Fight Club on his Facebook page. The British phone-hacking scandal, and former CIA director Gen. David Petraeus’s email indiscretions with Paula Broadwell are also in the mix.

It was pure serendipity when the Snowden story broke last month just as Hoback was putting the finishing touches on his documentary. The fired intelligence contractor—and now fugitive from federal charges of violating the Espionage Act—makes an appearance during the closing credits, in an excerpt from his on-camera interview with Guardian correspondent Glenn Greenwald. “The greatest fear I have regarding the outcome of these disclosures for America,” Snowden confides, “is that nothing will change.”