I’m very pleased to post a draft of my forthcoming essay with Professor Woodrow Hartzog (BU Law), Kafka in the Age of AI and the Futility of Privacy as Control, 104 B.U. L. Rev. (forthcoming 2024). It’s a short engaging read – just 20 pages! We argue that although Kafka shows us the plight of the disempowered individual, his work also paradoxically suggests that empowering the individual isn’t the answer to protecting privacy, especially in the age of artificial intelligence.
You can download the article for free on SSRN. We welcome feedback.
Scroll down for some excerpts from our PowerPoint presentation for this essay – images created by AI!
Here’s the abstract:
Although writing more than a century ago, Franz Kafka captured the core problem of digital technologies – how individuals are rendered powerless and vulnerable. During the past fifty years, and especially in the 21st century, privacy laws have been sprouting up around the world. These laws are often based heavily on an Individual Control Model that aims to empower individuals with rights to help them control the collection, use, and disclosure of their data.
In this Essay, we argue that although Kafka starkly shows us the plight of the disempowered individual, his work also paradoxically suggests that empowering the individual isn’t the answer to protecting privacy, especially in the age of artificial intelligence. In Kafka’s world, characters readily submit to authority, even when they aren’t forced and even when doing so leads to injury or death. The victims are blamed, and they even blame themselves.
Although Kafka’s view of human nature is exaggerated for darkly comedic effect, it nevertheless captures many truths that privacy law must reckon with. Even if dark patterns and dirty manipulative practices are cleaned up, people will still make bad decisions about privacy. Despite warnings, people will embrace the technologies that hurt them. When given control over their data, people will give it right back. And when people’s data is used in unexpected and harmful ways, people will often blame themselves.
Kafka’s provides key insights for regulating privacy in the age of AI. The law can’t empower individuals when it is the system that renders them powerless. Ultimately, privacy law’s primary goal should not be to give individuals control over their data. Instead, the law should focus on ensuring a societal structure that brings the collection, use, and disclosure of personal data under control.
Click the button to download the essay draft for free.
Some key quotes from our essay:
![“[I]f bestowed with control over their data, people will willingly cede it to the large entities that are collecting and using their data. And they will do so even when it harms them.” - Solove & Hartzog, Kafka in the Age of AI](data:image/svg+xml;nitro-empty-id=NjI0Ojk0MA==-1;base64,PHN2ZyB2aWV3Qm94PSIwIDAgODY0IDQ4NiIgd2lkdGg9Ijg2NCIgaGVpZ2h0PSI0ODYiIHhtbG5zPSJodHRwOi8vd3d3LnczLm9yZy8yMDAwL3N2ZyI+PC9zdmc+)
![“People readily “consent” to the widespread indiscriminate collection and use of their data. . . . [C]ompanies can just nudge, tempt, or seduce people into the behaviors that generate profit, which often involve people maximally exposing their data. . . . When given power, people often will give it right back.” - Solove & Hartzog, Kafka in the Age of AI](data:image/svg+xml;nitro-empty-id=NjI4OjEwNzI=-1;base64,PHN2ZyB2aWV3Qm94PSIwIDAgODY0IDQ4NiIgd2lkdGg9Ijg2NCIgaGVpZ2h0PSI0ODYiIHhtbG5zPSJodHRwOi8vd3d3LnczLm9yZy8yMDAwL3N2ZyI+PC9zdmc+)
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Professor Daniel J. Solove is a law professor at George Washington University Law School. Through his company, TeachPrivacy, he has created the largest library of computer-based privacy and data security training, with more than 150 courses. He is also the co-organizer of the Privacy + Security Forum events for privacy professionals.
