There is no shortage of chilling moments in “Terms and Conditions May Apply,” but perhaps the one that sends the biggest shiver down the spine is realizing it was made before the recent revelations about the NSA’s surveillance program PRISM and the complicity of search engines such as Google and social networks such as Facebook in providing them with personal information. As whistleblower Edward Snowden stays in the news, millions of Americans are only now discovering on a daily basis how much of their personal information is no longer private, but for filmmaker Cullen Hoback, these series of epiphanies or to use his term, “WTF rabbit hole moments,” happened long ago.
“[I wondered] how is it that all of these dots haven’t really been connected,” recalls Hoback, who has spent the past two years piecing together a doc about how user agreements have invited third parties into your private online life. “And I think it’s because we live in a 24-hour news cycle. There’s tons of stories that come out about this stuff, but it’s a really big problem with a lot of moving parts. It requires just a little bit more meditation and it needed to be distilled, so it’s not like this film does a ton of investigative research because it didn’t need to. I felt what it needed to do was show things that had been proven in the past that had happened and kind of build this larger picture of how we got here.”
That picture “Terms and Conditions May Apply” isn’t a pretty one, but one nonetheless which seems particularly vital, the timing of its release this week so perfect that if the film hadn’t premiered at the Slamdance Film Festival earlier this year, one might suspect Hoback had started looking into other people’s e-mails himself. However, Hoback, thankfully, prefers to streamline information rather than gather it for nefarious purposes, creating an effective, straightforward history of how those terms and conditions that are so often glossed over in order to download a system update or the cookies we okay to watch a video or read an article online have given way to an era where all our information is collected and often commodified, usually to our detriment.
The film touches on such famous incidents as when a young girl’s pregnancy was revealed to her father by Target coupons in 2012 or the hacking of murdered British teen Milly Dowler’s cell phone, but it pushes the conversation forward by delving deep into how privacy has eroded, allowing the virtual world to spill into the real one with interviews ranging from big picture observers such as futurist Ray Kurzweil to those who specialize in minutiae such as a typographer at Cal Poly who explains how user agreements are purposefully created to make one’s eyes sore. Fortunately, one cannot say the same about Hoback’s fourth feature, which is alternately funny and frightening from start to finish and while he was in the midst of a busy week in advance of the film’s release, he took the time to talk about how he unexpectedly made a horror film, arranging an impromptu meeting with Mark Zuckerberg and keeping up with a subject that’s constantly changing.
How did you initially get interested in this subject?
I just wanted to know how technology was changing us. That was my foundational question. I interviewed many, many professionals who are now on the cutting room floor because the film evolved out of being about how technology was changing how we communicate and can develop, which are really interesting questions, but I didn’t think they addressed what I ended up seeing as the bigger problem, which is the loss of privacy and how it’s been taken from us in a somewhat sly way. You can feel something that’s amiss, you’re giving up something, but it’s very hard to put your finger on it because rights are invisible, of course and you don’t understand the value of a right until you need it.
Were there certain turning points for you in figuring out what the film would be?
The inciting incident of the film, for me, was seeing that word “prevent” in terms and conditions agreement. I’d start to look at these agreements and go, “Well, what are the implications of saying your data can be shared with the government to ‘prevent'”? That was a huge one for me. Obviously, there’s a lot of stuff in there that’s pretty sketchy — the fact that these corporations can change terms at any time is really sketchy. An even more top-level one was just the realization that everything we do digitally comes with a legally binding contract. It’s weird to say because now it feels obvious, but before, I thought terms and conditions and privacy policies were these benign things…
Like thinking you’ll go to prison for ripping off a mattress tag…
I didn’t realize they were legally binding. I also had thought of privacy policies and something that were there to protect us. Privacy policies are actually about taking away privacy.
You have in the film the famous example of GameStation, a UK company that laid claim to “your immortal soul” in the fine print. Were there others you found were particularly egregious that you couldn’t include in the film?
There were a bunch. I didn’t want to make the movie be about companies using terms and conditions to screw their customers. That’s like the most banal aspect of it. There’s an example of Getty Images – they in their terms and conditions use that contract to be able to charge people a lot of money down the road if they lapse on a license. You go online, you type in Getty Images, you’ll find a lot of angry, angry graphic designers who have sent bills for several thousand dollars. Instagram is really one of the best examples, which is why I ended up reediting the film, because I theoretically finished the film before that happened and that was a great example of someone saying yeah, we can change your terms at any time and now all of this stuff you’re sharing on our servers, we can sell them. We don’t have to share profits with you. When you do that to National Geographic and all of their photos are on your servers and that’s the foundation of their business model, you’re going to upset some people.
How long were you actually working on this? And was it a challenge to keep up with everything that transpired since it’s evolving even as we speak?
I was in a constant race against the clock to get the film done as quickly as I could. But in reality, you can only work so fast and I just worked every day for two years straight. When the film felt finished to me, that’s when I tried to say it was done, but I have been editing the film up until three weeks ago. I still have made some small changes to keep it as current as I possibly could. That’s always the hardest part to say when enough is enough. I’ll just keep editing until I literally can’t edit anymore.
I wouldn’t want to spoil the moment in the film, but the scene that surely will be one of the most talked about is when you approach Mark Zuckerberg outside his house since there’s no other way to get an interview. It makes for an incredibly poignant point about privacy, so much so that I wondered whether you went into that situation knowing what you wanted to get out of it?
I didn’t know if Mark Zuckerberg was going to be there that day. I didn’t know if he walked to work or if he had a tunnel, so it was hard for me to have any kind of clear expectation, but I did know what I was hoping for. I was hoping that I could arrange for some type of a sit-down interview with him. I was [also] curious if he would just reject the camera, want things to be shut off if and in fact if he would not be okay with being recorded when he doesn’t necessarily want to or he’s in a public setting because that would speak volumes. So there were a few different curiosities at play and you’re making a documentary, so you’re not exactly sure how it’s going to work out. I’d still like to get that [sit-down] interview with him.
What have you gotten out of the experience of making this film?
I’ve gotten a lot more government surveillance being applied to my calls and my e-mails than I ever would have before. [laughs] That’s a hard one because what I got out of the film is really what’s in the film. But since then, I’ve been going around city to city and talking to people trying to really change the situation and also connecting with different organizations who are out there right now who are working in the privacy space who have really been doing the ground fight for a long time now, I’ve started to see this film have an impact. We even have a social action site called TrackOff.us. That has made the 2700 hours of editing and the excess of surveillance worth it.
“Terms and Conditions May Apply” will open on July 12th at the Quad Cinema in New York and in Los Angeles at the NoHo 7 on July 19th. A full schedule of other cities and dates can be found here. It will also be available on VOD and through Tugg. Additionally, Cullen Hoback and privacy researcher and activist Christopher Soghoian will be doing a Reddit AMA at noon EST on July 11th.