[Another metaphor better captures the problems: Franz Kafka’s The Trial. Kafka’s novel centers around a man who is arrested but not informed why. He desperately tries to find out what triggered his arrest and what’s in store for him. He finds out that a mysterious court system has a dossier on him and is investigating him, but he’s unable to learn much more. The Trial 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 portrayed by the Kafkaesque metaphor are of a different sort than the problems caused by surveillance. They often do not result in inhibition. Instead they are problems of information processing—the storage, use, or analysis of data—rather than of 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 also affect social structure by altering the kind of relationships people have with the institutions that make important decisions about their lives.
Legal and policy solutions focus too much on the problems under the Orwellian metaphor—those of surveillance—and aren’t adequately addressing the Kafkaesque problems—those of information processing. The difficulty is that commentators are trying to conceive of the problems caused by databases in terms of surveillance when, in fact, those problems are different.
Commentators often attempt to refute the nothing-to-hide argument by pointing to things people want to hide. But the problem with the nothing-to-hide argument is the underlying assumption that privacy is about hiding bad things. By accepting this assumption, we concede far too much ground and invite an unproductive discussion about information that people would very likely want to hide. As the computer-security specialist Schneier aptly notes, the nothing-to-hide argument stems from a faulty “premise that privacy is about hiding a wrong.” Surveillance, for example, can inhibit such lawful activities as free speech, free association, and other First Amendment rights essential for democracy.
The deeper problem with the nothing-to-hide argument is that it myopically views privacy as a form of secrecy. In contrast, understanding privacy as a plurality of related issues demonstrates that the disclosure of bad things is just one among many difficulties caused by government security measures. To return to my discussion of literary metaphors, the problems are not just Orwellian but Kafkaesque. Government information-gathering programs are problematic even if no information that people want to hide is uncovered. In The Trial, the problem is not inhibited behavior but rather a suffocating powerlessness and vulnerability created by the court system’s use of personal data and its denial to the protagonist of any knowledge of or participation in the process. The harms are bureaucratic ones—indifference, error, abuse, frustration, and lack of transparency and accountability.
One such harm, for example, which I call aggregation, emerges from the fusion of small bits of seemingly innocuous data. When combined, the information becomes much more telling. By joining pieces of information we might not take pains to guard, the government can glean information about us that we might indeed wish to conceal. For example, suppose you bought a book about cancer. This purchase isn’t very revealing on its own, for it indicates just an interest in the disease. Suppose you bought a wig. The purchase of a wig, by itself, could be for a number of reasons. But combine those two pieces of information, and now the inference can be made that you have cancer and are undergoing chemotherapy. That might be a fact you wouldn’t mind sharing, but you’d certainly want to have the choice.
A related problem involves secondary use. Secondary use is the exploitation of data obtained for one purpose for an unrelated purpose without the subject’s consent. How long will personal data be stored? How will the information be used? What could it be used for in the future? The potential uses of any piece of personal information are vast. Without limits on or accountability for how that information is used, it is hard for people to assess the dangers of the data’s being in the government’s control.]
Why Privacy Matters Even if You Have ‘Nothing to Hide’
By Daniel J. Solove