Why Should We Even Care If the Government Is Collecting Our Data?

Kafka, not Orwell, can help us understand the problems of digitized mass surveillance, argues legal scholar Daniel J. Solove.


As people have tried to make sense of the recent revelations about the government's mass data-collection efforts, one classic text is experiencing a spike in popularity: George Orwell's 1984 has seen a 7,000 percent increase in sales over the last 24 hours.*

But wait! This is the wrong piece of literature for understanding the NSA's programs, argues legal scholar Daniel J. Solove. In his book, The Digital Person, Solove writes that the troubles with the collection of massive amounts of personal data in databases are distinct from those of government surveillance, the latter being the focus of 1984. He summed up his argument in a later paper (emphasis added):

Many commentators had been using the metaphor of George Orwell's 1984 to describe the problems created by the collection and use of personal data. I contended that the Orwell metaphor, which focuses on the harms of surveillance (such as inhibition and social control) might be apt to describe law enforcement's monitoring of citizens. But much of the data gathered in computer databases is not particularly sensitive, such as one's race, birth date, gender, address, or marital status. Many people do not care about concealing the hotels they stay at, the cars they own or rent, or the kind of beverages they drink. People often do not take many steps to keep such information secret. Frequently, though not always, people's activities would not be inhibited if others knew this information.

I suggested a different metaphor to capture the problems: Franz Kafka's The Trial, which depicts a bureaucracy with inscrutable purposes that uses people's information to make important decisions about them, yet denies the people the ability to participate in how their information is used. The problems captured by the Kafka metaphor are of a different sort than the problems caused by surveillance. They often do not result in inhibition or chilling. Instead, they are problems of information processing--the storage, use, or analysis of data--rather than information collection. They affect the power relationships between people and the institutions of the modern state. They not only frustrate the individual by creating a sense of helplessness and powerlessness, but they also affect social structure by altering the kind of relationships people have with the institutions that make important decisions about their lives.

This reframing that Solove proposes is important not as a matter of literary criticism but because it more precisely pinpoints the problems the NSA programs could create. Politically, the traditional explanations -- that this is a violation of our privacy -- don't seem convincing to many people. According to a new Pew poll, 56 percent of Americans approve of the NSA's phone-data collection and 45 percent of email monitoring. Sixty-two percent say it is more important to investigate terror threats than it is to avoid privacy intrusions.

The most convincing reasoning for the majority's position is, in Solove's view, "formidable." He writes, "The NSA surveillance, data mining, or other government informationgathering programs will result in the disclosure of particular pieces of information to a few government officials, or perhaps only to government computers. This very limited disclosure of the particular information involved is not likely to be threatening to the privacy of law-abiding citizens." In other words, for many Americans, digital data collection, analyzed by algorithm, does not amount to a serious invasion of their privacy. In this calculation, the amount of privacy traded away is small, and the potential security gains great. This is a trade many Americans are willing to make, and not irrationally.

So, why then are the NSA's programs troubling? It's not so much in the collection of the data per se (the surveillance part) but the holding and processing of that data in perpetuity. As Solove writes (emphasis added):

The NSA program involves a massive database of information that individuals cannot access. Indeed, the very existence of the program was kept secret for years. This kind of information processing, which forbids people's knowledge or involvement, resembles in some ways a kind of due process problem. It is a structural problem involving the way people are treated by government institutions. Moreover, it creates a power imbalance between individuals and the government. To what extent should the Executive Branch and an agency such as the NSA, which is relatively insulated from the political process and public accountability, have a significant power over citizens? This issue is not about whether the information gathered is something people want to hide, but rather about the power and the structure of government.

Privacy is hard to define and even harder to defend. The legal scholar Arthur Miller called it "exasperatingly vague and evanescent." Samuel Warren and Louis Brandeis famously described it as the "right to be let alone" (something that the NSA's programs can only very indirectly be characterized as violating, since they operate without interfering with us pretty much at all). In Solove's formulation, we should ease off the privacy hand-wringing and turn our attention to something much more fundamental: how we relate as citizens to our government and how much power we have in that relationship. 

H/t Adrienne LaFrance for this factlet.