Modern Privacy Policies License Collection of Personal Information

How often do consumers agree to lengthy terms and conditions online to use Internet and other telecommunications services?

More importantly, how often do they, in fact, read these terms and conditions and know what they are agreeing to?

The 2013 documentary Terms and Conditions may Apply, directed by Cullen Hoback, explores just that.  The answer is captured in San Francisco Chronicle reporter G. Allen Johnson’s response that it is, “[t]he scariest movie I’ve seen this year, a horror tale that would have been science fiction had it been made in the 1990s.”

In the post Patriot Act era, companies’ terms and conditions, most notably privacy policies, are used to “inform” users and defend companies’ practices of collecting, compiling, storing and sharing personal information about individual users.  Essentially, these companies argue because users must agree to the terms and conditions prior to utilizing the services they must know what they are signing up for.  The problem is that due to the unequal distribution of bargaining power between multi-billion dollar companies and individual users, the user has no power to negotiate the terms and conditions.  Essentially, they must agree or forego using the service.  Further, as articulated in the film, companies are disincentivized from discontinuing these practices in two ways.

First, companies use cookies and web beacons to track individuals’ internet use, including which advertisements they click on and which emails they open to determine their interests.  They can then aggregate this information across demographic sectors and share it with other companies in the form of marketing and business reports.  For example, Google Analytics offers services such as Audience Data & Reporting, Mobile Traffic, Social Reports and In-page Analytics.  The taglines for these services include, “Trace the customer path” and “See what they’re up to.”  Unsurprisingly, and perhaps unfortunately, these services work.  Companies who know more about their consumers can more effectively target their advertising leading to increased sales.  As a result, there is no incentive for companies to stop utilizing this business model or collecting their users’ personal information.

The government provides additional incentives for companies to continue these practices.  Never before have law enforcement agencies had such cheap access to so much information about individuals, including their interests, political and religious ideologies, psychological outlook, etc.   Take for example, the Austrian law student, Max Schrems, who under EU law had the right to request his information stored by Facebook.  What he received in the mail was a disc continaing approximately 1,200 pages of his personal information.  Perhaps more shockingly, Schrems had only been a Facebook user since 2008!

Governments have license to access this information due to the third party doctrine.  Essentially, when individuals provide personal information to a third party they abdicate their right to Fourth Amendment protection.  In the landmark case, Smith v. Maryland, the Supreme Court concluded, “this Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”  In other words, everything consumers voluntarily provide to telecommunications companies, post on Facebook or enter into an internet search engine is fair game for government use, because it was voluntarily disclosed.

Perhaps the most compelling question at this point is, “so what?”  ”So what if the government can access all of this information about me, I haven’t done anything wrong?”  Consider Leigh Van Bryan, a British citizen who had plans to vacation in Los Angeles. Prior to his visit he posted on Twitter that he was going to, “‘destroy America,’ and ‘dig… Marilyn Monroe up’ from her grave, a joke from the American TV show ‘Family Guy.’”  While he meant that he and travelling partner, Emily Bunting, were going to party and sitesee, the Department of Homeland security detained and deported them for the “threatening” tweets.

Joe Lirapi, U.S. Army veteran and comedian, had a similar experience when the NYPD and SWAT team showed up at his door in reponse to a Facebook post.  Lirapi was frusterated with poor service he had received at the Apple store, so he posted a direct quote from the movie Fight Club, merely changing out the target in the quote for Apple.  After a two year battle with authorities, charges against him were dropped in 2011.

Perhaps it is time as a society to reconsider our privacy laws and information sharing practices.  Terms and Conditions may Apply is an insightful exposé about the risks associated with the current state of privacy and information protections.  The film leaves the audience with the question, “is privacy dead?”

*Kathryn Helin is a rising second year law student at Wake Forest University School of Law. She holds a Bachelor of Arts in Political Science and Women’s, Gender and Sexuality Studies from American University in Washington, D.C. Upon graduation, she intends to practice communications and privacy law.