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Film Review: Hoback's "Terms and Conditions May Apply" On the Cost of "Free" Online

BY Sarah Lai Stirland | Wednesday, July 31 2013

Filmmaker Cullen Hoback asks Mark Zuckerberg: ""Do you still think privacy is dead? What are your real thoughts on privacy?"

There's a scene in the new documentary "Terms and Conditions May Apply" that makes it look as if the filmmaker, Cullen Hoback, is stalking Facebook Founder Mark Zuckerberg.

Hoback failed to land an interview the traditional way for his story on the erosion of personal privacy in a post-September 11 world that also has mass, cheap digital storage and social media. So he decided to wait outside of Zuckerberg's house in Palo Alto instead. Hoback manages to catch Zuckerberg leaving his house one day in the Fall of 2011, and asks the young tycoon: "Do you still think privacy is dead? What are your real thoughts on privacy?"

Zuckerberg asks whether Hoback is recording, and when Hoback indicates yes, asks: "Can you please not?"

Hoback pretends to stop recording Zuckerberg with his video camera, but continues to capture the exchange with a pair of "spy glasses." He justifies the move by reasoning that Facebook apparently doesn't entirely delete user profiles when asked, as demonstrated by the case of the Austrian student Max Schrems, so he won't entirely stop recording Zuckerberg either. When Zuckerberg thinks the recording has stopped, he loosens up a little, looks up from the ground, actually turns to face Hoback, smiles, and waves.

Zuckerberg smiled and relaxed because he was relieved that he wasn't being recorded against his will, Hoback suggests, adding that we should all be afforded this freedom.

But we're not, because of laws, anti-terrorism policies, and the business models of companies like Facebook and Google.

The film's title, "Terms and Conditions May Apply," refers to the fine print no one really reads before using services like Facebook, but the focus is more complex. Yes, Facebook collects reams of data on our every move. But that's not the scary part. The scary part, this film says, is that law enforcement then goes looking for all of that information — and sometimes, they find it.

"This film is not about how corporations misuse our data, because that to me didn't seem like the biggest problem," Hoback said in an interview. Rather, it was the implications for modern citizens when overeager government officials are actively searching for any potential signs of terrorists, and the potential for abuse absent any protections.

While his worries might have landed him in the category of the tin foil hat club a few years ago, current events -- as in today's Senate Judiciary Committee hearing on the extent of the National Security Agency's data collection activities -- show that Hoback's instincts were leading him into territory ripe for exploration. In fact, Hoback ends the movie with a sentence on the NSA contractor/whistleblower Edward Snowden revelations on PRISM and the clip of Snowden worrying that his disclosures will have no impact.

Even before these latest revelations, however, there's been increasing evidence of the scale of the NSA's activities -- for example the fact that it's building a $2 billion data center to sift through all of our digital data.

With the proliferation of surveillance cameras and digital intermediaries in our modern lives, Hoback argues, the world is becoming a Panopticon — a term first coined by the philosopher Jeremy Bentham for a structure where the occupant could be under surveillance at any time, but will never know precisely when someone is really watching. The point is that behavior changes even when surveillance is little more than a threat.

"That's so over the top!" I can hear you thinking. But that's precisely why this film is so interesting. Hoback catalogues example after example of why storing all of our information for others to later comb through is such a bad idea.

Take what happened last year to Leigh Van Bryan and his girlfriend.

The Irish national joked on Twitter, ahead of a planned vacation to the U.S., that he was free for a week "before I go and destroy America."

When he arrived in the land of the free, the Department of Homeland Security interrogated him at Los Angeles International Airport for five hours. They have said they were then held overnight and sent back to Europe.

In the movie, Van Bryan asks: "Are you being serious? Are you actually holding me for a tweet?" and then says: "Any moron who can read could see what it's meant as -- it ends with a kiss -- I'm sure Hitler didn't end his memoirs with a kiss!"

He ruefully explains to Hoback that forever on he's going to have to explain to law enforcement authorities, wherever he goes, that he was questioned in the U.S. thanks to a misunderstood tweet.

Hoback isn't just concerned with social media. He addresses how our digital identities are managed by technology companies. For example, he cites an uproar in the Netherlands for resulting from GPS device vendor TomTom's decision to sell user data to police so that they could determine the best locations to set speed traps. From something like that to something as relatively mild as Google deciding to track user behavior across all of its services — after Executive Chairman Eric Schmidt said in a televised December 14th 2009 interview that Google didn't do it and would not be likely to do it — the end result is more information for law enforcement to trawl through but protections for regular people that seem worrisomely incomplete.

For his part, Hoback is asking tech companies to allow us to exert more control over our identities in the digital world, to own our data so that we don't have to worry about how it could be used against us as we apply for insurance, travel for vacations, or do a million other things that are increasingly governed by data and our histories.

Hoback tells his viewers:

"We need terms and conditions that are reasonable. We need privacy policies to promote the most basic principles of democracy, instead of taking them away, or as a young senator once said, back before he became President: 'We need to find a way forward to make sure that we can stop terrorists while protecting privacy and liberty of innocent Americans. We have to find a way to give the president the power he needs to protect us, while making sure that he doesn't abuse that power."

The film does have its flaws. For example, it implies that tech companies are solely responsible for a lack of privacy protection on the federal level. That's not true. The tech companies have a strong interest in some form of legislation because they're the ones who have to deal with a complex web of rules that vary from country to country and even state to state. They're also not that keen on giving their user information away. Just because they don't always shout about their efforts to protect their users (and the trust those users put in their services) doesn't mean that they're not working to push legislation favorable to consumers on some level. For example, the Internet Association, which includes both Facebook and Google, is part of the Digital Due Process Coalition, which advocates for modernized and more stringent rules for law enforcement access to citizens' personal digital information. Organizations such as the American Civil Liberties Union, the Center for Democracy and Technology, and the Electronic Frontier Foundation are all part of this coalition.

In addition, Hoback doesn't give us any perspectives from those who wield all this power, and the techniques they employ to try to keep the nation safe. (He tells me he tried to get more people into the film who could defend the collection and use of personal data, but it was difficult to get people to agree to on-camera interviews.)

That said, Hoback's important new film takes the debate over privacy from abstract and academic into something that is easier for people to relate to their daily experience.

Hoback says the timing of his project might have simply been a function of where our society is at with digital technology today. When I asked him how he decided to tackle a potentially difficult topic that people traditionally haven't been that interested in, he said he had no problems getting people on board with him, and that the various screenings that the film's had over the past few weeks have been packed.

"I think this has been on people's minds," he said. "It's just that there's this cognitive dissonance -- we've been going along with the social norms of using these tools, but there's also this general discomfort, and that's what I'm tackling -- why is there this level of discomfort? Where is this discomfort coming from?"

The movie will open in San Francisco on Friday, and will also be screened throughout the country for the rest of the summer. Those living in places where there aren't screenings can request one.