Clicking "Agree" Without Reading The Fine Print

Clicking "Agree" Without Reading The Fine Print

MR. KOJO NNAMDI

12:06:41
From WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. It's Tech Tuesday. It's every internet user's secret. In the middle of downloading new software, you're asked to accept the terms of service. It's pages full of fine print blocked lettering and Roman numerals and you, you scroll right to the bottom and click yes, I have read and agree to the terms and conditions, without reading a single world.

MR. KOJO NNAMDI

12:07:21
These lengthy service agreements that come with many websites, apps or software updates are writing the rules that govern the digital world. They dictate the privacy of your personal information on gmail and your rights to your photos on Facebook and Instagram. The problem is, few users ever read them and some warn that we could be signing away civil liberties in the fine print.

MR. KOJO NNAMDI

12:07:44
Joining us to explain all of this is Cullen Hoback. He is director of a new documentary called "Terms and Conditions May Apply," which takes a close look at the privacy policies we accept online. Cullen Hoback joins us in our Washington studio. Thank you for joining us.

MR. CULLEN HOBACK

12:08:00
Oh, it's great to be here.

NNAMDI

12:08:01
And joining us from studios in Toronto, Canada, is Margaret Jane Radin. She's a professor at the University of Michigan Law School and the author of the book "Boiler Plate: The Fine Print Vanishing Rights And The Rule of Law." She joins us -- And I should mention that during the course of this interview, you'll hear me refer to her as Peggy, which is how Margaret Jane Radin prefers to be referred to.

NNAMDI

12:08:26
Thank you so much for joining us.

MS. MARGARET JANE RADIN

12:08:28
Thank you so much, Kojo. Glad to be here. Hello, Cullen, glad to meet you.

HOBACK

12:08:32
Hey, good to meet you, too, Peggy.

NNAMDI

12:08:33
You, too, can join this conversation. It's a place where people obviously meet people. Call us at 800-433-8850 or send email to kojo@wamu.org. You can also send us a tweet @kojoshow. Cullen, just say the words terms and conditions and you'll have your audience looking for the exits. After all, few of us really want to spend an afternoon going over these service agreements, which usually involve long paragraphs of fine print and are written in a legalize that's hard to understand. Since most of us have not read them, can you tell us what's there? What are we likely missing?

HOBACK

12:09:10
Well, you're missing thousands of words of intentionally difficult to understand information. You know, I think, you know, over the course of the next hour, we can discuss many of the things that are in there. I can tell you certainly some of the things I find to be the most alarming. What I would say is that there's really two sort of different philosophies when it comes to these agreements, online, in particular.

HOBACK

12:09:35
You know, what we have is the so-called free services, the ones where we're paying with our data and then we have the services like Apple which, you know, we're not paying with our data, we're paying with traditional money.

NNAMDI

12:09:46
Our money.

HOBACK

12:09:47
So they have sort of two different philosophies, I would say. You ,know, Apple, companies where we're paying for the service, you know, they're more interested in protecting themselves. You'll find very absurd things in their agreement to limit their liability, to the extent of saying that you can't actually use an Apple product to engage in nuclear warfare. You will actually find that somewhere in the iTunes agreement.

HOBACK

12:10:09
So these things exist, you know, to basically protect pay services as much as possible. Then, when you look at the free services, I should say "free services," you know, what they're really interested in is getting as much from you as possible, you know, and imagining every possible way in the future that they might be able to get something from you as well. And so that's the kind of language you'll see in there is this -- it's like a data land grab essentially. And, of course, they want to limit their liability, too.

NNAMDI

12:10:39
You're gonna make me go looking for that nuclear war stuff now, if it's actually in there. I gotta see it to believe it. Peggy, while you're a professor of law, you also admit that you sometimes click agree without reading the full terms of service. As a legal scholar, are you surprised by all the terms we now agree to online?

RADIN

12:11:00
Not anymore. I was when I started investigating this, but not anymore. We agree to give up legal remedies that we thought were precious, like jury trial and, like, the right to join in class actions and join anti-discrimination suits and rights of employees and, you know, rights when we take our kids to daycare and summer camp and agree to excuse the service from anything they do to us, whether before, after or during and pay their attorneys fees, too. I was shocked by some of that when I first started reading these, but not anymore. The sky's the limit.

NNAMDI

12:11:38
800-433-8850 is our number. Do you actually read the terms and conditions online or offline? Give us a call or shoot us an email to kojo@wamu.org if you've ever had any concerns, legal or otherwise, about a service agreement or waiver of liability that you are expected to sign or that you have already signed. You can also send us a tweet @kojoshow using the #techtuesday. Again, the number 800-433-8850.

NNAMDI

12:12:08
Peggy, as you point out, we don’t just agree to terms of service online, we sign off on so-called boiler plate agreements before sending our kids off to summer camp or before accepting a job opportunity. What are boiler plate agreements and what's problematic about them?

RADIN

12:12:24
Boiler plate means just that we can't change it. It stems from the old days when everything was set in type and metal and it means we can't change it. And we either agree or we walk away. And what's problematic about it is that the company is trying to take back all the legal rights that we're guaranteed, either by the Constitution or by legislation or by common law. They're trying to take back as many rights as they can.

RADIN

12:12:47
I call it boiler plate rights deletion. So it's a deletion of rights scheme and some companies are quite honorable, I know, but it's a race to the bottom, too. If any company can prevent themselves from ever being sued for anything no matter how careless they are and how much they hurt people or give them shoddy products or don't care who they employ to take care of children, then other companies might have to do that, too, to compete with them.

RADIN

12:13:16
So that's why it seems to me to be a race to the bottom and just in line with the techie theme, the more these things went online, the more they were copied verbatim from company to company. I've even known law students who are employed to copy boiler plate from other companies. So they've proliferated a great deal in the digital environment and now they're everywhere.

RADIN

12:13:38
So if people -- I don't read them because I know what they are and people who don't know what they are and couldn't understand them if they did read them are being rational not to read them. It wouldn't help if they read them. We're gonna have to cope with them in some different way other than trying to get everybody to read them.

NNAMDI

12:13:56
What do we stand to lose, Peggy, when we agree to far-reaching conditions in a service agreement?

RADIN

12:14:02
Well, first of all, you could lose your right to sue them for damages if they do anything bad to you. And, you know, if they sell you a shoddy product and your computer blows up and ruins all your data and you haven't backed it up, you can't sue them. You can't sue them for consequential damages if they inflict personal injury on you if they try and exculpate themselves, that means say they're not guilty of doing anything.

RADIN

12:14:29
If they try to waive your right to jury trial, then you can't bring them to federal court. If they try to say you can't join -- we waive class actions, then you can't join together with other people, which means that any time anyone has damages of -- let's say an internet service provider charges you $15 extra per month or banks charge you $5 extra per month, like if you send them a check rather than a credit card, if you can't do that on a class action basis, then you can't do it at all.

RADIN

12:15:00
So they're raking in millions of dollars while those of us who can't ever get any kind of relief are paying them. So it's not just money, though. It's letting people say you can't sue us in torte ever, even if we're terrible negligent and hurt your child and...

NNAMDI

12:15:21
And you, apparently, once confronted a person presenting paperwork to use that that clause, the exculpatory clause, was unenforceable. And what was the response that you got?

RADIN

12:15:31
The response was basically, you can't change that. My insurance company makes me give this to you. And that's a very good question because I think that small businesses, like the gym where I was given this thing are at the mercy of large businesses and large insurance companies. So I think if insurance companies are saying I won't give you insurance unless you pass all the risk onto your customers, then somebody should get after insurance companies. And that's not me, but it should be somebody. I'm just a professor. But it should be somebody. It should be somebody.

NNAMDI

12:16:06
I wonder if anyone listening has ever successfully challenged one of these agreements. Give us a call. 800-433-8850. Or tell us what your experience was when you attempted to challenge one of these agreements. You can shoot us an email to kojo@wamu.org. Maybe one of the reasons why people find difficulty reading these agreements and don't read them is because of the way type looks. Cullen, you actually spoke with a typographer about the design behind your average online service agreement. Let's hear what he had to say.

UNIDENTIFIED MAN

12:16:39
If I were trying to make a user agreement uninviting, I would choose a small font, the sans-serif font, and I would set it in all caps, okay. Because what happens then is that you have type that becomes a texture, rather than words and spaces.

NNAMDI

12:16:55
Well, do you think what a service agreement looks like determines whether or not we read it?

HOBACK

12:17:00
I think it plays into it. I think that, you know, what's happened is we've accepted the design of these things over time and as the years have crept by, we've paid less and less attention to them. So maybe in the beginning they were designed to be unapproachable and seem so ridiculous that they couldn't possibly be valid.

HOBACK

12:17:22
I think that most users online thought the terms and conditions were, somehow they were not beholden to them. I think even myself, that was very surprising to me to find out that these were actually legally binding agreements. And up until now, I would love to hear of an instance where they have not been upheld in court.

NNAMDI

12:17:42
Well, I suspect that a lot of people, including most of listeners, think of these things in terms of "standard agreements" and like you and maybe me, think they're not necessarily legally binding until we find out that they are. Peggy, many terms of service agreements are practically incomprehensible because they include so much legal jargon. Why are they so opaque and is there any way that companies could make them more transparent?

RADIN

12:18:09
Well, they could and some states have plain English laws. I think New York is one. Call me from New York if I'm wrong, though, 'cause it's not my jurisdiction. But I think New York is one. So they try to put it in plain English and they try to put it in bold face and they try to do lots of things, especially if the law tells them to. But the problem is that not even my law students, when I first take them in, they don't know what an arbitration clause is.

RADIN

12:18:35
So no matter how big a print you put it in, they're not going to know that that says you can't take it to a jury, even if it's a federal non-discrimination right and it says that you can't get together with other people in class actions, usually. And so if it says we have a large choice of forum clause and it's in Florida and you're in Washington, but you don't know what a choice of forum clause is, meaning you can't sue us except at our home base 3,000 miles away, then putting it in big print isn't going to help.

RADIN

12:19:05
So some people are fans of the plain language laws and I'm not so much. I think we should, if we're trying to do something about this, we should find other ways to do things about it. But that's a topic that's open for debate. I should say that while these are validated by courts in the U.S. pretty routinely, but not 100 percent of the time, they're mostly illegal if used against consumers in the European Union and in some other places, such as Australia. So it's not the case that, all over the world, these are being used as much as they are in the U.S. of A.

HOBACK

12:19:41
And Peggy, correct me if I'm wrong, but I believe in Europe actually if a company puts something into a user agreement that you wouldn't expect to be there and it's kind of tucked away, it actually invalidates the entire agreement.

NNAMDI

12:19:55
Peggy...

RADIN

12:19:57
I'm not sure of the answer to that. I am not familiar with that. I know they have a fair contracts directive and it's been valid -- it's been in place since 1993 and they've made it more strict rather than less over the intervening 20 years. So that may well be true. You know, one thing to say about that is, for example, we have agreements like the fine print on the back of the FedEx and those types of things, which say no matter what our employees tell you, we can't be liable because fine print is the only thing that governs. And the legalese for that is a merger clause, which nobody knows what it means.

RADIN

12:20:32
But you can't, in the European Union, do that against a consumer. If their employees say something to you, then they're bound by it. And you can't say that people can't sue in their home jurisdiction, which you can readily do in the U.S. So different countries have different laws.

RADIN

12:20:49
And I've often wondered about that with respect to big corporations like Apple, because if they're selling stuff in France or Germany they can't put all those disclaimers of damages and waivers of everything that they put in their U.S. contracts. So I think that somebody should get together a nice big chart and publish it online of what terms people are subject to in other places besides at home. (unintelligible) .

HOBACK

12:21:15
Well, what's interesting, too, is that in…

RADIN

12:21:18
Maybe a filmmaker. (laughter)

HOBACK

12:21:21
I was speaking to somebody after one of my screenings in New York, who actually writes the backend code for how data and privacy implementation is done in Europe. And he was saying, actually, that they have to write different code and handle users' privacy differently...

RADIN

12:21:35
That's right.

HOBACK

12:21:36
…in Europe, and that's it's completely possible. Now, I presume that this was not someone working for one of the larger companies because they can just pay the fines and it's easier to do business as usual than it is to rewrite, you know, than it is to actually modify their business model country by country. But that was the first I had heard of actually being able to sort of rewrite code based on state or country boundary.

NNAMDI

12:21:58
It's a fascinating Tech Tuesday conversation on clicking "Agree" without reading the fine print and the implications thereof. If it's a conversation you'd like to join, give us a call at 800-433-8850. How transparent do you think tech companies are about the products and services you use? Are you aware of what they do with your personal information? 800-433-8850 or send email to Kojo@wamu.org. I'm Kojo Nnamdi.

NNAMDI

12:24:14
Welcome back. It's Tech Tuesday. We're talking about clicking "Agree" without reading the fine print. We're talking with Margaret Jane, or Peggy, Radin. She's a professor at the University of Michigan Law School and author of the book, "Boilerplate: The Fine Print Vanishing Rights and the Rule of Law." Also in studio with us is Cullen Hoback, director of a new documentary called, "Terms And Conditions May Apply," which takes a close look at the privacy polices we accept online.

NNAMDI

12:24:40
We accept your calls at 800-433-8850, your email to Kojo@wamu.org. I’m going to read a pretty long email from Donna. "Recently I purchased an airline ticket and paid an extra $17 for insurance. A contract 60 pages long was emailed to me and I printed it, not knowing the length of the contract. It was mostly very fine print. And, no, I did not read it. Later I had to cancel my ticket because the meeting I was to attend was cancelled."

NNAMDI

12:25:06
"I was told I had to be either dead or ill, called for jury duty, called back to military service or my traveling partner was too ill to travel. My cancelled meeting did not apply and I was charged $100 cancellation fee on top of the cost of the ticket. I told them they should have reimbursed me for the printing ink and paper it cost me for the worthless contract." (laughter) Did Donna have any other option, Peggy?

RADIN

12:25:32
You know, unfortunately, I can't give legal advice over the air or…

NNAMDI

12:25:36
Sure. (laugh)

RADIN

12:25:36
…and actually not at all, but unfortunately, I don't think so. I think there's this fiction going on where courts will say, even if you didn't read it, there was a duty to read it and I suppose they think even if you didn't understand it, there was a duty to understand it. And these trip insurance deals are actually not very good. So one should, I suppose, go to Consumer Reports or a site like FairContracts.org and see which kinds of contracts have so many loopholes that you don't want to buy them.

RADIN

12:26:08
But I think that that would likely be enforceable and it wouldn't be worth your while. You can sort of be a nuisance, you know. You can actually make comments in public media and try and hurt the company's reputation and sometimes that works if they've burned other customers. But I don't think an actual lawsuit would actually get you anywhere. You can also, though, take them to small claims court and try and subpoena their CEO or something and waste their time. That might help, too.

NNAMDI

12:26:42
Cullen, some of us may have been using sites like Google for more than decade. How have terms and conditions changed as the online world has grown into what it is today? Were you able to pinpoint any major shifts in policies?

HOBACK

12:26:55
Well, you know what's interesting? If you -- so I actually, in the film, look at privacy policies that Google had, you know, back in the late '90s, early 2000s, before 9/11. And I used a service called The Way Back Machine to see what their privacy policy looked like back then. Now, Google also has their privacy policies on their archive page.

NNAMDI

12:27:14
Except...

HOBACK

12:27:15
But I just thought I might look, you know, at an independent source to see if there were any inconsistencies. And there were. In fact, Google had gone back and basically rewritten the past. They had changed their privacy policy from 2000 to look as though it had always been the privacy from after 9/11. And they didn't even include their one from the very late '90s, which showed a very different philosophy of the company.

HOBACK

12:27:41
It was a philosophy based around the principles of anonymity, of saying when you use our service we don't share your information and we don't, you know, unless you explicitly give us permission to do so. Then after 9/11 there's a very different philosophy built into the privacy policy. And I think that someone over at Google -- now I have to surmise because I haven't received an official statement from them on this, but it seems to me that this was done through intent.

HOBACK

12:28:06
You know, largely because it was back dated and it was not just an accidental oversight. And, of course, we've heard Google, time and time again, apologize for things like, you know, scraping un-password-protected wi-fi networks as their Google cars drove around, and then say oh, we didn't write the code for that. We didn't know this was happening. Right. So Google has done what they want to do and then apologized later. And in fact, I can only assume in response to the film in the last few months Google has now gone back and updated their privacy policies to reflect the reality.

HOBACK

12:28:40
But what I think is so alarming here is that without some sort of watchdog, Google could have essentially rewritten the past. I mean that's what they were trying to do. And that, to me, is not the definition of not being evil.

NNAMDI

12:28:52
Over the past eight years Facebook has changed its privacy setting pretty dramatically. In 2005 most of a user's profile was private by default. By 2010 most information was public by default. What can these kind of policy changes mean for users? First you, Cullen, and then Peggy.

HOBACK

12:29:10
Oh, yeah. I mean when you sign up with a service you sign up with a certain expectation. The reality is though that they can change that expectation at any time. And that is something you'll find in most user agreements, the idea that they can change the terms at any time. And sometimes they have to notify you, sometimes they don't. And of course they could also change whether or not they have to notify you (laugh) by virtue of simply having that in their agreement.

HOBACK

12:29:31
So when you start using any of these services, it's based largely on trust and on the hope that they will maintain the same philosophy that they had at the beginning. Now, Facebook's, you know, interest in making things more and more public is largely connected to the fact that the more public things are the more searchable they are. And the more searchable they are the more valuable they are because that data, you know, that data has value and there's a real profit engine there and profit motive for Facebook.

HOBACK

12:30:02
So that's why we've seen everything now, except for your contact info and your birthday, being shared by default with the entire world when you join Facebook.

NNAMDI

12:30:11
800-433-8850. Have you ever had any concerns, legal or otherwise, about a service agreement or waiver or liability that you were expected to sign or already signed? Give us a call, 800-433-8850. Peggy, as Cullen was saying, web companies make their terms freely available for everyone to see, but many include a clause warning that the terms and conditions may change at any time. How can users make sure they're up to date on any changes and why can they do that?

RADIN

12:30:41
That unilateral modification clause is one of the things that bothers me most as a contracts professor because none of these things are really contracts, in the sense of agreements between two parties. But the worse thing about them is that they're really undermining civil society. And, yeah, I don't think you can do anything about the unilateral modification, other than just sign off. They're undermining civil society. They're making billions of dollars off of our personal information and they're deceiving us about it or at least letting us go on blindingly ignoring that.

RADIN

12:31:14
There are horror stories in the me-space world. One of the ones I put in my book was someone who signed papers to go on a safari with her son and he was then eaten by hyenas and she couldn't sue about it in court. And there are horror stories, such as Cullen has in his movies, having to do with people who searched online for things like wife beating and murder and it turned out they were a writer, but the SWAT team showed up at their homes to question them about what they searched for.

RADIN

12:31:48
So I think we're undermining civil society with these things. And I think it's a matter of concern for society as a whole. And even if individuals waive these things because we can't read them and we don't know what they mean, it shouldn't be a matter for individuals to decide individual by individual on a basis of millions of people because it changes what society is like. And that really is my biggest concern and why I wrote a book about this.

NNAMDI

12:32:17
Well, pardon me if this question is redundant, but how can a consumer consent to a service agreement if we know the company may change the terms at any time?

RADIN

12:32:30
That is a $64 legal question. (laughter) Contracts are supposed to be -- I've been teaching contracts for some years now. I've been a law professor for 37 years or 38 maybe, and I've been teaching contracts for at least 15. And what the contracts books say is you come to agreement and if somebody says I can do whatever I want at will to your agreement, that contract is not really a contract, but our courts routinely ignore that. And our, you know, Justice Scalia, for our Supreme Court, has a little footnote in one of these cases saying, well, you know, the firm said they could modify at any time, so they modified, so what.

RADIN

12:33:07
So actually the courts have moved beyond what contract is supposed to be. And that is something that I object to, but I more object to the idea that we're undermining civil society and encouraging companies to be irresponsible. I don't think we need to do that. I think some companies want to be responsible and they find that the competitive environment is really discouraging for trying to be responsible.

RADIN

12:33:33
So I think we're encouraging irresponsibility, and we're trying to make the consumer the person -- me with my private data and me with children that I want to protect, we're trying make that person responsible for everything. And I don't think that's the way civil society is meant to work. That's why the rule of law is in the title of my book, too.

NNAMDI

12:33:54
800-433-8850. The title of that book is, "Boilerplate: The Fine Print Vanishing Rights and the Rule of Law." The author is one of our guests. She is Margaret Jane, or Peggy, Radin, a professor at the University of Michigan Law School. Cullen Hoback is our other guest. He's director of a new documentary called "Terms And Conditions May Apply." That documentary takes a close look at the privacy policies we accept online. You can call us at 800-433-8850.

NNAMDI

12:34:22
Do you actually read the terms and conditions online or offline? 800-433-8850. Cullen, we got an email from Darrel in D.C. who says, "My issue is that it's an all or nothing proposition. Assuming you take the time to read the documentation, there's no room or opportunity to negotiate terms. You're at the mercy of the agreement." Is that correct?

HOBACK

12:34:45
Absolutely, that's correct. I mean, the problem right now is, yeah, either you get the service or you don't. We have no -- well, we theoretically have collective bargaining power. I mean that's what the government's role is, but we've seen this real push back against having any kind of regulation at all. And I would argue that the constitution is regulation. You know, I mean, we ran from tyranny and we came up with some laws to protect freedoms. And what we don't have is any of those freedoms protected online right now. And that's what we need to start having a conversation about in this country, is how to restore Fourth Amendment protections, in particular online.

HOBACK

12:35:19
Because when you lose Fourth Amendment protections you also -- free speech and free press go out the door with that, the ability to protest, all of this stuff. And that's what I show in the film, you know. These contracts show the nature of the trade and it goes beyond just what we're giving the companies because what we give the companies we also vis-a-vis something called the Third Party Doctrine essentially give the government.

HOBACK

12:35:40
And so this is why -- this connects to everything that's been going on with Snowden. It connects with the NSA. And it's all largely attributed to what's hidden in these thousands and thousands of words long agreements.

NNAMDI

12:35:51
On to the telephones. Here's Pete, in Silver Spring, Md. Pete, you're on the air. Go ahead, please.

PETE

12:35:57
Oh, thank you. I wanted to ask the callers if they had experience with this. I'm a small business owner with my wife and made arrangements to accept credit cards. And after three months it wasn't working out and we cancelled the service for accepting credit cards and we were hit with a purported $500 termination fee. And I'm actually someone that reads fine print, as well as I can. Of course, I'm not an attorney. I don't understand it all, as you've been saying, but I do my best to piece together.

PETE

12:36:31
And so, of course, the company in question directed me back to this thing that I had signed, which, you know, referred to a URL going to a PDF document that was 60 pages long, which I did not know existed and had not read. So I did a search through the PDF document and it was on page 44 out of 60 in eight point writing. And only after going through all this had I realized that the services company that the bank had subcontracted had a lot of complaints about this exact thing. And there was no way that I would known that terminating would cost $500 unless I had somehow managed to find this link, gone to the internet, printed it out and read all 60 pages of it.

PETE

12:37:19
So I'm wondering -- I'm really intrigued by the conversation that you've been having and if you had experiences with either banks or other entities doing this kind of thing.

NNAMDI

12:37:31
Cullen?

HOBACK

12:37:32
Oh, man, I mean this is ubiquitous. I point out in the film, and it's a citation from the Wall Street journal, but consumers lose $250 billion each year due to what's hidden in fine print. That is an enormous amount. So what is happening to you is happening to all of us. And it's happening on a regular basis.

NNAMDI

12:37:54
Well, we expect, Peggy, that our elected officials will solve this problem. Generally, legislatures decide what is in our legal rights and what isn't. So how did these terms of service and boilerplate agreements become such a routine part of our legal framework?

RADIN

12:38:10
That is an interesting question. I think that, as I say, working backwards I think as things moved online I think they became more and more ubiquitous and longer and longer and routinely copied so it became a race to the bottom. But I think it started with insurance policies about 100 years ago. Nobody can read the fine print on insurance policies and there's insurance regulation that's supposed to help with that. I don't know how good insurance regulation is, but I think it should get busy about some of this stuff.

RADIN

12:38:41
I think that legislatures who want to regulate some rights that we're supposed to have, like maybe tenants' rights and landlord/tenant law, they need to make sure to make the rights they give us not waivable. Because if it's waivable by fine print then every lease that any tenant ever saw would have fine print saying your right to get back your security deposit is hereby waived, and your right to have a working toilet is hereby waived, and whatever.

RADIN

12:39:10
So I think people -- when the legislatures enacted things like tenant statutes maybe 30 or so years ago, some of them seemed to know that some rights should be made non-waivable. And I certainly think we should get our legislators to keep doing that. But I do want to respond to Pete about banks because, see, the $500 fee would -- it may be because it was so hard to find that term, that if you ever did get it into a court, some really honest common law judge would say that was unconscionable as a contract because nobody could be expected to see that.

RADIN

12:39:48
The problem is that you can't get it into court without paying an attorney a lot more than that. And so that's where it becomes necessary to have class actions because they're doing it to everybody. So if you could get together with 100,000 other people that this happened to, they might have to sit up and listen because then they're not going to be able to be collecting $500 from everybody.

RADIN

12:40:09
But, unfortunately, our Supreme Court believes 5 to 4 that we shouldn't be able to do that sort of thing. So, for example, there was a recent case called -- and Pete's question brings this to mind, too. There was a recent case called Italian Colors versus American Express. And American Express was accused of being a monopolist and of charging these small businesses, these restaurants extra money and making them take a debit card, as well as a credit card and so forth.

RADIN

12:40:41
And it turned out, in order to have an anti-trust cause of action you need to get expensive economists to state why it's monopolistic. And in order to get expensive economists, you have to put out much more money than the individual claims were worth. So they wanted to have a class action, but unfortunately the fine print in the boilerplate that American Express gave all of these small businesses said that they couldn't have a class action.

RADIN

12:41:07
And our Supreme Court ruled 5 to 4 that it was just too darn bad and their federal rights for anti-trust against monopoly were just all waived by this supposed contract. I'm saying too darn bad because that's what Justice Kagan said in dissent. (laughter)

NNAMDI

12:41:23
Thank you for that…

RADIN

12:41:24
So, Pete, you should try and help persuade Congress to enact the Arbitration Fairness Act of 2013, which would say that in consumer disputes and employment disputes and disputes such as the kind that you had, you cannot have mandatory pre-dispute arbitration clauses and that would help a lot of the problem. The kind of problem that you had would be cleared up by that, I think, because you could have a class-action and so many people have been burned by this. I think you might get somewhere.

HOBACK

12:41:57
Or you know what you could do? You could do what this gentleman did in Russia, which is he actually rewrote the terms of service, the bank didn't read them. And he put inside of his agreement that he would have zero percent for life and if they ever tried to come after him they would owe him an incredible amount of money.

RADIN

12:42:11
Yes.

HOBACK

12:42:12
Turns out, you know, of course, at some point they came after him for whatever they thought their APR was. He fought back, sued and won. (laugh)

NNAMDI

12:42:20
Because he did put it in the…

RADIN

12:42:21
Right.

NNAMDI

12:42:22
…agreement. Pete, thank you very much for your call. Sometimes the banks don't read the fine print either. We've got to take a short break, though, when we come back we'll be continuing this conversation on clicking "Agree" without reading the fine print. It's Tech Tuesday. I'm Kojo Nnamdi.

NNAMDI

12:44:21
We're talking with Cullen Hoback, director of a documentary called "Terms And Conditions May Apply," which takes a close look at the privacy policies we accept online. We're also talking with Margaret Jane, or Peggy, Radin. She is a professor at the University of Michigan Law School. She is author of the book, "Boilerplate: The Fine Print Vanishing Rights and the Rule of Law." She joins us from studios in Toronto.

NNAMDI

12:44:44
People often say that web companies must maintain the trust of their users, but today Facebook has five million active users, Google is the default search engine on most web browsers. Cullen, at one point, MIT professor Sherry Turkle points out that there may be a disconnect between how users view companies like Facebook and Google and what they really are, that is non-profit companies. Let's hear that clip.

MS. SHERRY TURKLE

12:45:12
I'm okay with Facebook behaving like a company, but I think we need to treat it like a company and not treat it like some benign public utility.

NNAMDI

12:45:22
How do how we perceive these websites affect how we use them? Because when I think of it, a lot of us do think of Google and Facebook as a public utility of some kind, a public service.

HOBACK

12:45:33
Well, and with over a billion people basically using Facebook now, I don't know if that's completely unreasonable. You have over 50 percent of the American population on Facebook at this point. And when you hit those kinds of numbers you have to sit back and think, well, wow, I mean, how is it that something like this has no regulation? I mean our phone lines, our phone systems, we've had regulation there for a very long time. So I think that it's easy, too, when you look at the logos of these companies.

HOBACK

12:46:00
They're designed to be very friendly. You feel like you're getting something for free. And then years go by and your privacy has been eroded and suddenly, you know, we wake up to these issues that we're now facing today. So it doesn't come as any great surprise to me that these companies thought that we shouldn't have an expectation of privacy, but we thought that we should have.

NNAMDI

12:46:24
800-433-8850 or you can send us a tweet @kojoshow. Do you think of Facebook and Google as public services or do you see them for what they are, which is private, non-profit companies? Care to comment on that, Peggy, at all?

RADIN

12:46:37
Well, yes, I do. I was happy when Cullen said we have constitutional rights, which are really regulatory. We have the Fourth Amendment saying we should be free from search and seizure. We have freedom of speech, First Amendment. We have Fifth Amendment, and jury trial and actually due process and Seventh Amendment jury trial. And we have lots and lots of regulations, which are supposed to keep civil society together. That's what the "Rule of Law" is about.

RADIN

12:47:04
And when you have giant companies who control all of this information about people, it -- some people say I don't care about my privacy, but there have been so many people hurt by this. There's been bullying of vulnerable teenagers. There's been -- I mean, not just the screenwriter who searched for things for his writing and had the police knock on the door, but there's been people who got hurt. There's been people who committed suicide. There's been people who ran away from home. There's been people who had their jobs -- they were fired from their jobs because of something they said.

RADIN

12:47:36
And so I think if, you know, Cullen, if your movie wakes people up to not say things on Facebook that they don't want the entire universe to know, I think you've done society a great service. And I hope that that will happen.

NNAMDI

12:47:51
Here's Charles, in Washington, D.C. Charles, you're on the air. Go ahead, please.

CHARLES

12:47:55
Hi, Kojo. I'm a contract lawyer and a former professor of contract law. And in response to the speaker's request for information about court decisions that have struck down some of these online contracts, I just published a new e-book called, "Everyone's Guide to Electronic Contracts." And it includes a chapter on those court decisions that have found various online contracts to not be enforceable. Also, listeners should be aware that advertisers, including online websites, cannot use deceptive advertising.

CHARLES

12:48:36
And the Federal Trade Commission enforces that law and has published some dot com disclosure guidance that companies like Facebook and Google must follow. Also, there are new California and federal laws that prohibit deceptive practices in terms of enrolling people in monthly subscriptions and in transferring credit card information that's originally given to one party and given to another third party online.

CHARLES

12:49:09
So I agree that federal privacy law is desirable to protect consumers against misuse of their online information, but consumers should be aware that every state law -- and contract law is state law -- requires all contracts to be enforced fairly and in good faith. And, you know, it's an uphill battle, especially with the Supreme Court's decisions on class actions.

NNAMDI

12:49:39
That Peggy referred to, yes.

CHARLES

12:49:40
But there are tools there -- small claims court was mentioned -- that consumers should be aware of and should use.

NNAMDI

12:49:49
Okay. Thank you very much for your call, Charles. Peggy, you apparently want to say something.

RADIN

12:49:53
Yeah, thank you, Charles. Yeah, well, I do. I want to say, again, that there is a website, FairContracts.org. There are some others like that. There are consumer protection websites. There are national associations where all consumer lawyers contribute, but I recommend getting started with that one because consumers can, in certain cases, find ways to push back. And it'll be worthwhile to do that because we can make a firm care what we think.

NNAMDI

12:50:23
Thank you very much for your call, Charles. Cullen, you touch on something called Third Party Doctrine. And in your film, ACLU's principal's technologist, Chris Soghoian, explains what that is. Let's listen.

MR. CHRIS SOGHOIAN

12:50:39
The Third Party Doctrine means that when you, a consumer, share your data with a bank, with an email provider, with a search engine, with any kind of technology company, you have basically given up what would have been your Fourth Amendment protections over that data.

NNAMDI

12:50:58
How does that doctrine fit into most internet users' expectations of privacy online, Cullen?

HOBACK

12:51:05
Yeah, I mean, it's just really kind of incredible slight of hand. And what I like to do is compare it in a way to Blackwater a few years ago. Where basically, the government couldn't conduct certain military operations and so what do they do? They hired an independent contractor, a third party, to do that. Essentially, what we've seen here is Google, Facebook, much of the tech industry has become a sort of de facto Blackwater. Now, they're not being paid by the government to aggregate this information, but they're making billions of dollars off of the exact same information anyway.

HOBACK

12:51:41
They're just performing a service that the government has wanted for a very long time, which is -- and I say the government, as if it's all the same, but aspects, you know, parts of the government have been after for a very long time, which is unadulterated access to basically everything that we do. You know, if you go back to the early 2000s, there was Total Information Awareness, which is a really creepy program, with a really creepy symbol of the eye of the pyramid scanning the Earth with a sinister laser beam.

HOBACK

12:52:11
You know, and that program was shut down. Why? Because people were freaked out, but because Facebook, because Google, because all of this stuff is happening invisibly and granted by something like the Third Party Doctrine and required in ways vis-à-vis the Patriot Act and the FISA Amendments, you know, we've ended up in an incredible surveillance state as a result of this. And a surveillance state which is, if not granted through these contracts, at least revealed through them.

NNAMDI

12:52:43
Peggy, in cases that deal with the Fourth Amendment, courts will debate whether the person in question has a reasonable expectation of privacy. How do you judge whose expectation is reasonable online?

RADIN

12:52:56
This is a very sad and difficult doctrine. And I think the courts, in expectation of privacy, offline they finally realized what a mire they were in and started to get out of it. The reason it's a terrible doctrine is that the worse things get, if what we're looking at out there is what we should expect, than the worse it is the more we should expect it. It's like if the police are arresting people for nothing, the more they do that the more we should expect that we're being arrested for nothing. And the more surveillance there is the more we should expect that we're being spied on. That can't be reasonable though.

RADIN

12:53:34
What reasonable must mean is we should think that we have rights and the worse things get the worse our rights are being trampled upon. So personally, as a scholar, I think they should get rid of the term expectation because you don't want the everybody-does-it defense. The more it happens the more we're supposed to put up with it? That can't be right. And so I think that this is a doctrine which got them into trouble. I think they do sort of realize it, but they tend to be behind the times when these things are happening. And so I would like us to come back to our rights as citizens, whether or not they're being transgressed.

RADIN

12:54:15
I do want to say, with regard to these companies, if I may, you know, the reason that Google and Facebook want all that data is because of advertising. They want to sell it to people that are advertising things. And that's how they make their money. But it's an unholy alliance with the surveillance state, which is an extreme consequence of having everything be available online now.

RADIN

12:54:42
So, you know, Google didn't get started because it wanted to facilitate surveillance. It wanted to make money by being able to advertise to everybody who, by knowing exactly what you were willing to buy because you have all this data about each individual, but it made great surveillance possible. And that's the unholy alliance that the film is showing us, I think.

NNAMDI

12:55:07
A little while ago, in requesting your telephone calls and emails, I said do you think of Facebook and Google as public services, or do you see them as private, non-profit companies? Well, needless to say, one of our listeners picked up on that Freudian slip immediately. (laughter) Here is Jim, in Annapolis, Md. Jim, you're on the air. Go ahead, please.

JIM

12:55:27
Yes. Not to contradict you, but I don't think that either Facebook or Google are non-profits. I think they're adequately for profit.

RADIN

12:55:37
Yes.

JIM

12:55:37
I mean, and they're quite successful at it.

RADIN

12:55:40
Yeah, what is Google's stock price today? Six hundred or something? (laughter)

JIM

12:55:45
Yeah, and as far as to the issue of their collecting information on people, I agree with Peggy, that it was not for the purpose of spying, but I don't think that they protested greatly when they were required to furnish their data to the National Security Agency.

HOBACK

12:56:00
No. It's certainly not for the purposes. I mean, that's, obviously, not why, but I like to describe it as, you know, it's their job to know us better than anyone else knows us. Because that's how they can better advertise to us. But if you look at that philosophy of trying to understand their user, you know who else wants to know us better than anyone else knows us.

NNAMDI

12:56:19
Jim, thank you very much for your call. Cullen, you say you were not really a privacy advocate before you started this film. How have your own personal habits changed since you made this film?

HOBACK

12:56:32
Well, I still have a Facebook account. (laughter) But, you know, mostly I use it to criticize Facebook. I believe we have to use social media to fix it. At the same time, the reason I haven't deleted that account is because they're going to hold onto the information even if I delete it. So I'd like to have access to my own information. But when it comes to other things online, I mean, you know, I'm looking at ways to, you know, to find companies which are truly innovating in the privacy space.

HOBACK

12:56:58
I think Duck, Duck, Go is a great way to do anonymized searching online. You can limit third-party tracking, especially if you have a kid. I think it's really important to put something like Disconnect Kids on your iPhone or your, you know, iPad or Ghostery on your computer. There are new sites like Sgrouples, which is devoted to trying to build a private social network, you know. And there are complications with that, but I think that this is where the future needs to go.

HOBACK

12:57:23
It's not just going to be a matter of regulation. We're going to need innovation happening in tandem and we're also going to need to put pressure on these companies. anonymized

RADIN

12:57:30
Right.

HOBACK

12:57:31
Which is something that we're doing at Trackoff.us. That's the sort of social action hub connected to the film and that's where we're going to put pressure on Congress, pressure on companies and try to enact some change.

RADIN

12:57:41
I completely agree with what Cullen just said.

NNAMDI

12:57:41
But, Peggy, I hate to cut you off at "I agree," Peggy, but we're just about out of time.

RADIN

12:57:50
Okay.

HOBACK

12:57:49
Just like every user online, right?

NNAMDI

12:57:50
Just like every user online.

RADIN

12:57:51
Right.

NNAMDI

12:57:53
Margaret Jane, or Peggy, Radin's a professor at the University of Michigan Law School, and the author of, "Boilerplate: The Fine Print Vanishing Rights and the Rule of Law." Cullen Hoback is director of a new documentary called, "Terms And Conditions May Apply." It takes a close look at the privacy policies we accept online. "Terms And Conditions May Apply" will be playing at West End Cinema until August 22. Cullen Hoback, thank you for joining us.

HOBACK

12:58:16
Thank you for having me.

NNAMDI

12:58:17
Peggy Jane Radin, thank you for joining us.

RADIN

12:58:19
Thank you very much.

NNAMDI

12:58:20
And thank you all for listening. I'm Kojo Nnamdi.
Transcripts of WAMU programs are available for personal use. Transcripts are provided "As Is" without warranties of any kind, either express or implied. WAMU does not warrant that the transcript is error-free. For all WAMU programs, the broadcast audio should be considered the authoritative version. Transcripts are owned by WAMU 88.5 FM American University Radio and are protected by laws in both the United States and international law. You may not sell or modify transcripts or reproduce, display, distribute, or otherwise use the transcript, in whole or in part, in any way for any public or commercial purpose without the express written permission of WAMU. All requests for uses beyond personal and noncommercial use should be referred to (202) 885-1200.
The Kojo Nnamdi Show is produced by member-supported WAMU 88.5 in Washington DC.