The battle of the metaphors is much more than a literary parlor game, said Solove in his article, “Privacy and Power: Computer Databases and Metaphors for Information Privacy.” The way a problem is framed determines its solution, he suggested. And if lawmakers are to come up with adequate responses to the lack of privacy online, they need to fully understand the nature of the beast. In short, if they read books, they should read more Kafka and less Orwell.
It’s customary these days for many legal thinkers, journalists and just plain civilians to use the phrase “Big Brother” when bemoaning the loss of privacy created by the rise of computerized databases which track an individual’s every move in cyberspace.
The slogan is great to toss around at conferences and parties. But people who take books and ideas seriously might well ask: is Big Brother — the personification of an all-seeing totalitarian government depicted in George Orwell’s novel “1984” — the best metaphor to describe the privacy problems of the Internet Age?
According to Daniel J. Solove, an assistant professor at Seton Hall Law School in New Jersey who teaches a course in privacy, the answer is no.
In a 70-page article that Solove said he hopes to publish in a major law review in the fall, and which is available as a working draft on the Internet, Solove set his sights upon an alternative nightmare. He wrote that Franz Kafka’s harrowing tale “The Trial” better explains the texture and feel of the privacy problems of today.
The battle of the metaphors is much more than a literary parlor game, said Solove in his article, “Privacy and Power: Computer Databases and Metaphors for Information Privacy.” The way a problem is framed determines its solution, he suggested. And if lawmakers are to come up with adequate responses to the lack of privacy online, they need to fully understand the nature of the beast. In short, if they read books, they should read more Kafka and less Orwell.
In his article, which is an entertaining hybrid of legal scholarship and literary discussion, Solove recalled that Orwell’s novel depicts an oppressive government that regulates every aspect of existence — even one’s private thoughts. In every corner of Orwell’s imaginary world are posters of a giant face with the caption: “Big Brother is Watching You.” The goal of the state is dreary conformity. The means used are techniques of surveillance that result in self-censorship. Uniformed men patrol street corners, helicopters peer in houses and the “telescreen” installed in every home — watches people as they watch it.
For Solove, Big Brother is an apt metaphor to describe the effects of surveillance and the invasion of a person’s secret or private world. But that doesn’t get at the heart of the computer database threat, he said.
“Understanding the problem as surveillance fails to account for the majority of our activities in the world and web,” he wrote. “A large portion of our personal information involves facts that we are not embarrassed about: our financial information, race, marital status, hobbies, occupation and the like. Most people surf the web without wandering into its dark corners. The vast majority of information collected about us concerns relatively innocuous details. The surveillance model does not explain why the recording of this non-taboo information poses a problem.”
Recognizing that privacy in the digital realm can be invaded even if no secrets are revealed and even if nobody is watching us, Solove argued that the better guide to modern life in cyberspace is Kafka. In “The Trial,” as every english major knows, Joseph K. awakens one morning to find a group of officials in his apartment. They inform him that he is under arrest. Instead of taking him to a police precinct, however, they unaccountably depart.
The rest of the novel is a kind of absurd odyssey. Joseph K. tries to find out why he has been arrested, without success. He tries to learn about a vast Court that has apparently assembled a detailed dossier on him. But the Court is secret. At the end of the tale he is seized by two officials in the night and executed.
The hallmarks of “The Trial” are impotence, anger and anxiety — a character’s sense that an unseen bureaucracy has information about him and that he has no control over the use of that information. That’s pretty close to the average person’s nagging sense of loss of privacy at the hands of some computerized databases, argued Solove.
“We are not heading toward a world of Big Brother or one composed of Little Brothers — but toward a more mindless process — of bureaucratic indifference, arbitrary errors, and dehumanization — a world that is beginning to resemble Kafka’s vision in “The Trial.” Solove wrote in his article.
Jack Balkin, a law professor and Internet law expert at Yale Law School who is familiar with Solove’s essay, applauded the author’s attempt to “do a different take” on the issue of privacy.
“With Orwell you have a brooding, evil guy trying to squeeze you,” Balkin said. “Kafka’s idea is that you are trapped in a maze.”
Balkin also noted that Solove’s work is far from academic. The right metaphor is a necessary ingredient to good legislation, he said.
“A striking example, the personalization of a problem, an easy-to-understand slogan, these are all important at the level of politics in getting people to understand what is at stake in a issue,” he said.
In a telephone interview, Solove, 28, who began his teaching career this year following his graduation from Yale Law School and some stints as a judicial clerk, said he wrote the article to bridge his interests in literature, internet law and the nature of bureaucracy.
He said that a lot of discussions about privacy boil down to a view of the type of world we want to live in — its feel and atmosphere. Literature is particularly good at capturing life in different types of societies, he said. And the literary metaphors we choose to employ in debates “effect the way we see a problem and the way we solve a problem,” he said.
The implications of adopting the Kafka view of privacy woes are signficant, added Solove. Anti-surveillance laws that are overly concerned with preventing the disclosure of confidential information remain important but miss the point when it comes to cyberspace, he said.
Instead of pursuing more similar legislation, state and federal legislatures should seek to create laws that regulate what public and private information may be collected and processed by private or governmental databases, how the information must be secured and how its successive transfer to other databases should be limited. These types of regulations, which are not in great evidence at present, would go a long way toward easing the average person’s dreadful sense that he has little or no control over his personal information, said Solove.
Author: CARL S. KAPLAN
News Service: New York Times
URL: http://www.nytimes.com/2001/02/02/technology/02CYBERLAW.html?printpage=yes
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