'Terms and Conditions May Apply': Are We Ready for a World Without Privacy?

Director Cullen Hoback talks about how the tracking of our online activities has eroded our civil rights, and created a surveillance state that leaves totalitarian regimes green with envy.

‘Terms and Conditions May Apply’ Documentary: Where's Our Online Privacy?
Matt Fleischer was awarded a Fund for Investigative Journalism grant for his series “Dangerous Jails.”

You know you’ve done it. We all have. Whether you wanted to watch a free video online, or buy a discounted toaster on Amazon, you’ve agreed to online “terms of service” that you’ve never read. Why bother with the fine print? Those terms are all just boilerplate and benign legalese, right?

Not exactly, according to the new documentary Terms and Conditions May Apply. Instead of overzealous legal protections, the terms and conditions for online and mobile devices have enabled companies to legally, with our consent, harvest massive amounts of our personal data—and to share that information with whatever government or corporate entities they see fit. The result is the complete end of privacy as we used to know it. With the click of a button, corporations, or the government, can know where we’ve traveled, who we’ve spoken with, our likes and dislikes, and even where we are on a moment to moment basis.

After making its theatrical debut at this year’s Hot Docs film festival, Terms and Conditions May Apply will premiere on our sister channel, pivot, this Sunday at 8 P.M. EST. We spoke with the director Cullen Hoback about his film, and about the efforts to create a world where privacy is once again the norm, and not a forgotten dream.

Is privacy dead, and, if so, what killed it?

I think privacy is on life support. It’s been a slow, creeping crawl. The Patriot Act was definitely a sledgehammer against our civil liberties. But the idea of using digital means to gain info on citizens is not a new concept. It has just evolved over time. It’s when corporate interests aligned with government interests that the issue of privacy really became dire. There was money to be made in gathering information, and a surveillance state could be achieved simultaneously.

What got you interested in the topic of online privacy? Was there a particular news story that ensnared you?

It was just a slow crawl. I started working on a film by asking a broad question: How is technology changing us as individuals? The deeper I dug, the less I thought this was my concern. I cut an entire film when I realized the answer was lying before me in these terms and conditions. This is the greatest civil liberties issue of our time. The ability to breach our privacy is just a keystroke away.

What’s the most disturbing thing you uncovered in researching this film?

I think the scariest thing is retrospective surveillance. The technology exists so that surveillance video feeds can be permanently stored and accessed in the future. So you have what amounts to a virtual time machine. You can find any citizen, in any given point in their life, scrutinize every aspect of their existence, and criminalize them. All of us have done something illegal in our lives. How many people have texted and driven at the same time? That’s a harmless one. How many people have stayed home from work pretending to be sick? These systems are so good, they find something in these mass volumes of data so that everyone can be painted as a criminal. Think about Google: What you type in Google is sometimes more personal than a diary. It would be easy to ascribe criminal intent to some of those searches.

Meanwhile, you have millions of people working as subcontractors for the spy industry. Many people can access these systems. You want to spy on your ex-girlfriend, go for it. There are people who have those powers. It does not require a subpoena. There are products corporations can buy to access these systems and spy on someone. You think they’re not going to use that? Of course they are. Just because the NSA may or may not be misusing this information doesn’t mean some other organization isn’t.

How important were NSA whistleblower Edward Snowden’s revelations?

I think a lot of journalists yawned when they first heard about Snowden because they have been aware of much of what he was talking about for years. The average American citizen, however, is not aware of how these systems work. I think Snowden changed the conversation in this country and captured the public’s imagination because he did something very different: He released documents. Past NSA leakers have not. He also focused on one thing everyone could understand: phone records. Each individual person’s phone records, frequency of calls, who they are talking to, is being stored—with the potential to go back and review it years later. That notion made the idea of spying very personal.

Do you still have a Facebook account?

I do have Facebook and I do use Twitter. The more you go off the grid, the more you put yourself in the spotlight for these organizations. By trying to protect yourself you put a target on yourself. Facebook, I only have that account, because if I delete that info, they’ll have it anyway. Rater than abandon social media, I really think we have to find a way to fix it.  

The business model of the Internet is currently based on violating our civil liberties. But “business-as-usual” is the enemy of innovation. We need to figure out how we can build privacy into social media and into the Internet. People around the world, in Europe especially, are trying to figure out how not to use Google, how not to use Facebook, how not to use American Internet companies that spy on them. Ultimately, that will be bad for the economy.

My greatest fear is that it will be privacy for some, but only those who can afford it. That’s why we ultimately need privacy legislation.  

In your film, you trace the true origins of the online privacy invasion to the Patriot Act. Will undoing it, as New Jersey Representative Rush Holt has proposed, have any effect?

There’s an important conversation happening right now in Congress about ending the Patriot Act. But I fear we’re not going to see any major legislative shift. The public is going to have to demand change. Too many people right now in Congress are receiving major donations from defense contractors—their motivations don’t lie with the constitution. We want to get as many congressmen as possible to see this film, so we can see some reform. A big part of the problem is that people on Capital Hill don’t believe Americans care about these issues. They also don’t fully understand how these systems work and how they’re being used.

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