'Kafka in the Age of AI and the Futility of Privacy as Control' by Daniel J. Solove and Woodrow Hartzog in (2024) 104 Boston University Law Review 1021 comments
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.
