Brian Lawler knows a thing or two about fine printing. The professor of graphic communication at California State Polytechnic University at San Luis Obispo oversees a quirky museum that houses a collection of 19th-century presses and more than 500 fonts of antique type. His passion for the intricacies of print is such that he'll comment offhandedly about the letter spacing in the Gutenberg Bible (mashed up pretty tight) and wax nostalgic about his "cook's tour" of a place called the Mergenthaler Linotype Co. That's where, back in the 1970s, a group of legendary designers sat around drafting tables in a big workroom, manually drawing -- yes, drawing -- letters. At least one of them went on to win a MacArthur "genius" grant, Lawler reports with a hint of awe.
But the day we're chatting with him, he relates the tale of another "masterful" piece of typesetting. It's an item that's fairly familiar to the average consumer, especially to anyone who fancies himself tech-savvy or a little cool, or both. The design, Lawler says, is "stunning" (Gutenberg, eat your heart out) yet goes unread by millions of buyers, even though ignoring it can be costly to them in the long run. The document he has in mind? The user agreement that came with his new iPhone.
We've all seen it, or something like it. It's a 32-page pamphlet, which takes a solid 30 minutes to read closely. (We know. We tried.) Lawler says, if just scanning the pages tires our eyes, there's a reason -- and it isn't just the proliferation of legalese like "warranties of merchantability." With margins of only about one-eighth of an inch, the page reads like a big gray mass, he says, with hardly any white space. And according to a transparent ruler he keeps handy to measure lettering size, the characters' height hits only 4.5 points, which translates to about one-sixteenth of an inch -- half the height of letters on this page. Put another way, that's a smidge taller than the thickness of a single dime. "Seriously small," he declares.
By Lawler's reckoning, the spacing between the lines of text isn't doing our eyeballs any favors either, scrunched to about 5.5 points. That's painfully tight, he says, squeaking just past the minimum legible standard before the descenders (the bottoms of the j's and p's, for instance) in one line of text start to overlap with the ascenders (the tops of the h's and f's) in the next line. And if you think any of these line spacings and type sizes came to be by accident, you're mistaken, says Lawler. The world's best typesetters work on these documents, and most fine-print producers review the whole design with legal teams. "There are $500-an-hour lawyers who make those decisions," he says.
For its part, Apple declines to discuss the intricacies of its type; it does say text is now easier to read on the latest iPhone because of a high-resolution "retina display." But to Lawler, the most striking design move is one that might surprise readers: the liberal use of uppercase letters. There are 19 separate blocks of all-cap text -- some five pages' worth -- in the iPhone agreement, including a disclaimer about Google Maps (the gist: They're provided "as is") and 60 lines in a section called "Disclaimer of Warranties" (buried halfway in: Don't count on the iPhone to operate a weapons system).
An uppercase strategy might seem consumer-friendly, a good way to alert users to warnings, but Lawler says it's just the opposite -- it makes the paragraphs nearly impossible to visually penetrate. Indeed, experts in the field say that without the variety of different-shaped letters, readers tend to perceive words of all-cap text as inscrutable blocks. (One study says that it slows reading speed by as much as 20 percent.) So why would a company present its customers with such a thicket of forbidding type? The lifelong lettering expert sums up his tutorial with a sigh: "They don't want you to read it."
It has become a daily fixture for American consumers, that collection of warnings, disclaimers and legal jargon that comes with most products and services -- designed in what typesetters descriptively call mouse type. In many ways, it's a time-honored national tradition, employed historically in everything from snake-oil elixirs (it contains how much opium?) to stock market manipulation. And while dinky-print disclaimers like "results may vary," "void where prohibited" and "may cause dry mouth or abnormal dreams" have become an annoying fact of life, most Americans have learned to pretty much tune them out and sign that 10-inch stack of loan documents or click "I agree" on the 55-page online user agreement -- hoping all the while they haven't signed away any vital organs. According to research conducted by professors at John Marshall Law School and De-Paul University, 61 percent of consumers reported that they didn't read all the terms of contracts before agreeing to them. (And those are just the ones who will admit to it.) In a related study, 96 percent of subjects signed a contract that included clauses saying they'd do push-ups on demand and give fellow participants electric shocks. "Laid edge to edge, they're impossible to stay on top of," says New York-based attorney James Denlea, of the fine-print disclaimers and contracts in consumers' lives. "It would be a full-time job."
But talk to consumer advocates, or even to the lawyers who write the stuff, and they'll say that the fine-print world is going through a significant transition -- thanks to an ongoing cat-and-mouse game over what consumers need to know. On the average joe's side of the ledger, regulators have recently pushed back on the tiny print with new rules designed to curb abuses. At long last, mutual funds have to disclose the fees they charge to 401(k) account holders. Airlines must now incorporate all previously asterisked fees and surcharges in their advertised ticket prices (no more fuel-tax sticker shock). But critics worry that some of the moves may only backfire -- generating even more pages of disclosure instead of reducing them. The issue, experts say, may be that as both products and regulations become more complex, so must the fine print that explains it all. In the past seven years, software license contracts have grown by 600 words, a 40 percent jump, while today the median length of bank disclosures for a checking account is a whopping 111 pages. And amid all that legalese, critics say, the consumer loses big money. Transparency Labs, which administers a national database of consumer contracts, estimates that information buried in these disclosures generates fees, exclusions, waivers and the like that cost each American household more than $2,000 a year -- for a total of about $250 billion annually.
Certainly, there is more than enough evidence that civilians are plenty fed up. The Better Business Bureau reports that complaints related to fine print or unclear documentation rose more than fivefold from 2005 to 2010. And more than half of the Federal Trade Commission's consumer-oriented cases involve companies failing to disclose important information adequately, estimates Mary Engle, the FTC's associate director for advertising practices. The opaque language can hide everything from minor nuisances to expensive setbacks. After purchasing a plane ticket through a national online travel agency, Dana Radcliffe began noticing some mysterious -- and recurring -- charges on his Visa bill. It was only after the Cornell University business-ethics professor called the company that he was told that, by clicking on a $20 cash-back offer at the conclusion of the transaction, he had actually signed up for a membership program. Radcliffe discovered he wasn't alone; between 2006 and 2008, the three largest credit card companies processed more than 10 million refunds for such disputed charges. (Radcliffe says he got off the hook pretty quickly: "I went in there with guns blazing.") On a bigger-ticket scale, car dealerships in central and southwest Texas generated some 1,100 Better Business Bureau grievances in the past year, most related to misleading language on trade-in incentives and warranties. In the Los Angeles area, a major satellite-TV company earned a D+ rating with nearly 40,000 complaints, most relating to the disconnect between its promotional pricing and "conditions that are not readily apparent from the advertising."
For many consumer advocates, the most unsettling event of 2011 came when a Supreme Court ruling strengthened companies' ability to use mandatory arbitration, a dispute-resolution process designed to keep consumer cases out of court. By upholding an arbitration provision buried in the fine print of an AT&T wireless service contract, the court slammed the door on consumers' option to band together in class-action suits and present cases to a jury. Such clauses, say critics of the fine-print proliferation, may now be the most egregious take-it-or-leave-it trend lurking in those small-type contracts. Consumer-protection lobbyist group Public Citizen says that at least 75 percent of companies across seven major industries -- including banks, credit card companies, computer manufacturers and brokerages -- now include mandatory binding-arbitration provisions.
That's unwelcome news for consumers like John and Michelle Rechtien. A few years ago, after the Army helicopter pilot and nurse purchased a newly built home in Savannah, Ga., problems quickly arose, including ill-fitting doors and windows (one spontaneously shattered), inadequate heating and cooling systems, shower leaks and mold. The home had come with a warranty contract, but the document included a clause requiring them to settle any beef through binding arbitration. Of the 182 concerns the couple raised, the arbitrator ruled in their favor on only 39 -- even fewer than the builder had agreed to fix. They were ultimately awarded $3,210, far less than the $14,000 to $20,000 in estimates they received for repairs. Neither Michelle nor John remembers reading the clause, but even if they both did, they might not have noticed, Michelle says: "You see 'mandatory arbitration,' and unless you've been screwed by it, you have no idea what it means."
Then again, many Americans say the bigger problem is that they simply can't see those words in the first place. It's a side effect of a steadily aging nation, where baby boomers are turning 65 at the rate of 10,000 people a day. Vision experts say that presbyopia, a fancy term for the degeneration that makes reading glasses mandatory, develops in older readers almost as commonly as wrinkles. (Weak-eyed boomers account for much of the $670 million market for over-the-counter reading glasses, which jumped 54 percent from 2003 to 2010.) One recent afternoon, Bonnie Meyer, a 60-something professor from State College, Pa., found herself straining to read the ingredient list on a soup-mix package. Even with her prescription glasses, Meyer couldn't make out whether the t word was tamarind or turmeric -- a serious health issue, given that she's allergic to turmeric. "I wasn't up for a shot of adrenaline at the emergency room," she says.
Of course, it's easy to blame the business community for mouse type run amok, but companies say it's not their fault. "I've never had a client say to me, 'Let's hide it in the fine print so no one will read it,'" says Alan Kaplinsky, a Philadelphia lawyer who's spent the bulk of his 40-year career advising and defending financial-services firms in consumer suits. "It's just a necessary part of transacting business in the U.S." Businesses say they have to protect themselves from class-action suits, the worst of which -- think oil spills, tobacco-related diseases and busted breast implants -- have cost them tens of billions of dollars. They also point to the dizzying lists of government regulations that, while designed to protect Americans, are turning disclosures into bigger diatribes of long-form lawyer lingo. When investment company Vanguard starts a new mutual fund, says Laura Merianos, an attorney there, her colleagues who draft the prospectus rely on the Securities and Exchange Commission's Form N-1A, which offers 64 pages of ultraspecific guidance on wording, length and type size. Although Vanguard works hard to make its materials accessible to Main Street investors, explaining industry terms like turnover rate and derivatives, Merianos says, she admits it'll never be beach reading: "There isn't a lot of ability to be creative." And the rules are about to grow exponentially: The Dodd-Frank financial-reform law, designed to crack down on bankers and brokers, is expected to generate hundreds more separate disclosure rules.
Indeed, between government requirements and companies' need to cover their multinational backsides, many say that boiling down the blah-blah-blah is a nearly impossible task. Look at Microsoft, this year's winner of the Wondermark award, a dubious distinction bestowed by a group called the Center for Plain Language on firms and organizations that can't seem to push the translation button on the gobbledygook. Judges of this year's contest -- who include legal linguists, communication-design scholars and the author of the Oxford Guide to Plain English -- called one of the tech giant's software-license agreements "a turgid romp through incomprehensible legalese." Microsoft declined to comment, but Jack Russo, managing partner of ComputerLaw Group of Palo Alto, Calif., says the real audience for documents like these is other attorneys -- not consumers -- and that their key concern is staving off lawsuits. In fact, some of the most broad-based disclaimers appear in the middle of Microsoft's agreement, where it discloses -- in all capital letters -- that it doesn't guarantee its product is fit to be sold, that it's not a violation of someone else's copyright (say what?), and further down, that the software giant is only liable for direct damages up to (don't spend it all in one place) $5. Of course, the language is a lot less plain, as the Wondermark judges dutifully point out.
The news isn't all bad. Recent legislation has resulted in more consumer-friendly disclosure rules on everything from credit cards to mortgage documents. And Annetta Cheek, chair of the Center for Plain Language, says President Obama's signing of the Plain Writing Act of 2010, which requires public agencies to lighten their leaden language, gave strong support to the antijargon movement. As for the private sector, Cheek is hoping her group's awards -- which recognize both positive (Clearmark) and negative (Wondermark) examples -- will keep raising the bar. (Insurance giant Aetna won one of the group's Clearmarks this year for its benefits website.) And Transparency Labs, an online database of contracts, is launching a free Web-based service that promises to translate every contract issued by America's largest corporations and financial institutions into readable, ninth-grade-level text. One inspiration for the archive? David Hirsch, CEO of Transparency Labs, says he was shocked when the first $100 he put into his young kids' savings accounts was quickly reduced to zero by fees.
Even if the corporate world's public-facing documents aren't perfect, the process companies undergo to write them can benefit consumers, says Lisa J. Sotto, a New York-based attorney who has crafted hundreds of online privacy notices for huge multinational banks, retailers and health care corporations. When disparate departments in megafirms talk to each other, she says, it often forces a collective reality check -- and even a pullback from more-controversial new practices, like the sale or trade of customers' private data. Sotto, who's been drafting these notices since 1999, says she's seen a huge evolution as the teams behind the verbiage try to make ethical and legal sense of technology that's ever faster, ever more powerful -- and ever growing in its invasive potential. The mandate to write it all clearly is especially important, she says, since a load of legalese can only scare people more: "It's unfair to the consumer to write it in such a convoluted way."
Ultimately, though, some corporate Goliaths suggest that all the Davids bear more responsibility to, well, practice due diligence -- and slog through the little letters. In fact, whether they're putting out a 150-page user contract or a one-line advertising disclaimer, some companies simply seem to be testing whether we're paying attention. A recent Dentyne ad, for one, features a claim that its gum is endorsed by the Safe Breath Alliance, complete with an official-looking stamp from the certifying body. Shawn Pulscher, senior associate brand manager at Dentyne, says the ad was designed to inject a cheeky tone into the disclaimer. If gumchewers look closely, they'll see that in small, low-contrast, all-uppercase print below the stamp, the company admits, "THE SAFE BREATH ALLIANCE IS 100% MADE UP."