GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2001

Status

Accepted

Abstract

Journalists, politicians, jurists, and legal academics often describe the privacy problem created by the collection and use of personal information through computer databases and the Internet with the metaphor of Big Brother - the totalitarian government portrayed in George Orwell's Nineteen Eighty-Four. Professor Solove argues that this is the wrong metaphor. The Big Brother metaphor as well as much of the law that protects privacy emerges from a longstanding 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. Professor Solove argues that the Big Brother metaphor merely reinforces this paradigm and that the problem is better captured by Franz Kafka's The Trial. Understood with the Kafka metaphor, the problem is the powerlessness, vulnerability, and dehumanization created by the assembly of dossiers of personal information where individuals lack any meaningful form of participation in the collection and use of their information. Professor Solove illustrates that conceptualizing the problem with the Kafka metaphor has profound implications for the law of information privacy as well as which legal approaches are taken to solve the problem.

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