Privacy and power: computer databases and metaphors for information privacy.

• Author: Solove, Daniel J.

1. INTRODUCTION

   We are in the midst of an information revolution, and we are only beginning to understand its implications. In the past decade, we have undergone a dramatic transformation in the way we shop, bank, and go about our daily business--changes that have resulted in an unprecedented proliferation of records and data.(l) The small details that were once captured in dim memories or fading scraps of paper are now preserved forever in the digital minds of computers, vast databases with fertile fields of personal data. Our wallets are stuffed with ATM cards, calling cards, frequent shopper cards, and credit cards--all of which can be used to record where we are and what we do. Every day, rivulets of information stream into electric brains to be sifted, sorted, rearranged, and combined in hundreds of different ways. Technology enables the preservation of the minutia of our everyday comings and goings, of our likes and dislikes, of who we are and what we own. Companies are constructing gigantic databases of psychological profiles, amassing data about an individual's race, gender, income, hobbies, and purchases. It is ever more possible to create an electronic collage that covers much of a person's life--a life captured in records, a digital biography composed in the collective computer networks of the world.

   Since their creation, computer databases have been viewed as problematic--a fear typically raised under the mantra of "privacy."(2) Databases certainly present a privacy problem, but what exactly is the nature of that problem? Although the problem of databases is understood as one of concern over privacy, beyond this, the problem is often not well defined. How much weight should our vague apprehensions be given, especially considering the tremendous utility, profit, and efficiency of using databases? The answer to this question depends upon how the privacy problem of databases is conceptualized. Unfortunately, so far, the problem has not been adequately articulated.

   Journalists,(3) politicians,(4) and jurists(5) often describe the problem created by databases with the metaphor of Big Brother--the harrowing totalitarian government portrayed in George Orwell's Nineteen Eighty-Four.(6) For example, in 1974, when the use of computer databases was in its infancy, Justice Douglas observed:

   With dossiers being compiled by commercial credit bureaus, state and local law enforcement agencies, the CIA, the FBI, the IRS, the Armed Services, and the Census Bureau, we live in an Orwellian age in which the computer has become "the heart of a surveillance system that will turn society into a transparent world."(7) Legal academics similarly characterize the problem.(8) In The Culture of Surveillance, William Staples observes that we have internalized Big Brother--we have created a Big Brother culture, where we all act as agents of surveillance and voyeurism.(9) "The specter of Big Brother has haunted computerization from the beginning," Abbe Mowshowitz observes. "Computerized personal record-keeping systems, in the hands of police and intelligence agencies, clearly extend the surveillance capabilities of the state."(10)

   Even when not directly discussing Big Brother, commentators describe the problem in similar conceptual terms. Paul Schwartz and Joel Reidenberg write:

   [Computer) data processing creates a potential for suppressing a capacity for free choice. The more that is known about an individual, the easier it is to force his obedience. Through the use of databanks, the state and private organizations can transform themselves into omnipotent parents and the rest of society into helpless children.(11) Commentators have adapted the Big Brother metaphor to describe the threat to privacy caused by private sector databases, often referring to private sector entities as "Little Brothers."(12) As David Lyon puts it: "Orwell's dystopic vision was dominated by the central state. He never guessed just how significant a decentralized consumerism might become for social control."(13) "Today," Paul Schwartz observes, "myriad Big and Little Brothers are involved in the collection and processing of personal data in the United States."(14) Katrin Byford writes: "Life in cyberspace, if left unregulated, thus promises to have distinct Orwellian overtones--with the notable difference that the primary threat to privacy comes not from government, but rather from the corporate world."(15) In his book, The End of Privacy, Reg Whitaker also revises the Big Brother narrative into one of a multitude of Little Brothers.(16)

   The use of the Big Brother metaphor to understand the database privacy problem is hardly surprising. Big Brother has long been the metaphor of choice to characterize privacy problems, and it has frequently been invoked when discussing police search tactics,(17) wiretapping and video surveillance,(18) and drug testing.(19) With regard to computer databases, however, Big Brother is the wrong metaphor.

   In this article, I argue that the database problem cannot adequately be understood by way of the Big Brother metaphor--even when adapted to account for private sector databases. Although the Big Brother metaphor certainly describes particular facets of the problem, it neglects many crucial dimensions. This oversight is far from inconsequential, for the way we conceptualize a problem has important ramifications for law and policy. I argue that the Big Brother metaphor as well as much of the law that protects privacy(20) emerges from an older paradigm for conceptualizing privacy problems. Under this paradigm, privacy is invaded by uncovering one's hidden world, by surveillance, and by the disclosure of concealed information. The harm caused by such invasions consists of inhibition, self-censorship, embarrassment, and damage to one's reputation. Privacy law has developed with this paradigm in mind, and consequently, it has failed to adapt to grapple effectively with the database problem. The Big Brother metaphor merely reinforces this old paradigm, and impedes our understanding of the problem.

   I argue that the problem is best captured by Franz Kafka's depiction of bureaucracy in The Trial(21)--a more thoughtless process of bureaucratic indifference, arbitrary errors, and dehumanization, a world where people feel powerless and vulnerable, without any meaningful form of participation in the collection and use of their information.

   Generally, a metaphor is the use of one thing to represent or symbolize another.(22) As George Lakoff and Mark Johnson observe in their groundbreaking analysis, metaphors are not mere linguistic embellishments or decorative overlays on experience; they are part of our conceptual systems and affect the way we interpret our experiences.(23) Metaphor is not simply an act of description; it is a way of conceptualization. "The essence of metaphor," write Lakoff and Johnson, "is understanding and experiencing one kind of thing in terms of another."(24) Much of our thinking about a problem involves the metaphors we use. According to J. M. Balkin, "metaphoric models selectively describe a situation, and in so doing help to suppress alternative conceptions."(25) Metaphors do not just distort reality but compose it; the "power (of metaphors) stems precisely from their ability to empower understanding by shaping and hence limiting it."(26)

   The Big Brother metaphor is definitely effective at capturing certain privacy problems, but not all privacy problems are the same. I argue that the metaphor fails to capture the most important dimension of the database problem: the nature of our relationships with public and private bureaucracy and the effects of these relationships on human dignity and freedom. We live today in a world largely controlled by public and private bureaucracies, affecting our communication, entertainment, health care, employment, education, transportation, and culture. These institutions structure our lives in the modern state, and our freedom is implicated in our relationships to them. Databases alter the way the bureaucratic process makes decisions and judgments affecting our lives; and they exacerbate and transform existing imbalances in power within our relationships with bureaucratic institutions. This is the central dimension of the database privacy problem, and it is best understood with the Kafka metaphor.

   As John Dewey aptly said, "a problem well put is half-solved."(27) "The way in which the problem is conceived," Dewey elaborated, "decides what specific suggestions are entertained and which are dismissed; what data are selected and which rejected; it is the criterion for relevancy and irrelevancy of hypotheses and conceptual structures."(28) Understanding the problem in light of the Kafka metaphor reveals systematic deficiencies across the spectrum of privacy law in addressing the special nature of the problem of databases. Further, understanding the problem with the Kafka metaphor reveals significant difficulties in the solutions proposed by the existing discourse on information privacy.

   Part II provides a background into the problem of databases. Part III discusses and critiques how the Big Brother metaphor structures how the database problem is currently conceptualized within the emerging discourse of information privacy. Part IV looks more broadly at the implications for privacy law of understanding the problem in terms of the Kafka metaphor.

2. THE INFORMATION REVOLUTION

   What is the nature and extent of the database privacy problem? Almost all of us are aware that our personal information is being collected and stored by many different entities. Many view this with great concern, although they find it difficult to articulate what the concern entails. This article aims to articulate that concern in a useful way. Before discussing the database problem conceptually, I will provide some background into the current methods of information collection and the existing and...