SCN: Privacy

[Steve]

x-no-archive: yes

========================

Finding the Right Literary Metaphor for Net Privacy   

(Carl S. Kaplan, NY Times)---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.   

Copyright 2001 The New York Times Company                              




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