Privacy is not doing so well these days. Today, the greatest threats do not concern places like the home— the spheres of intimacy the Founders care so much about — but consumer information compiled about and from citizens by private commercial entities and stored in databases easily accessible to the state or corporate interests by contract or subpoena. Acknowledging that the Constitution’s privacy protections are outmoded is just one step. Central to the problem is citizens’ indifference to their own privacy trade-offs in our culture of consumerism and convenience. Polls show people do care about privacy loss, they just do very little about it, or do not understand how trading away informational privacy to save a few measly bucks might be a bad idea.

Privacy Law's Metaphors

How, then, to connect citizen concern about privacy to action? Here, privacy theorists have overwhelmingly turned to metaphor. In fact, privacy— both as a concept and goal in law and policy— and threats to it, have been explained and disseminated to the general public predominantly by way of metaphors. Who can forget Warren and Brandeis invoking the common law metaphor of a “castle” in their work Right to Privacy, to explain the importance of “a man’s house” as an “impregnable” bastion of privacy? Or the famous Big Brother metaphor, invoking an all knowing and all seeing state entity Orwell warned of? Indeed, legal scholars love privacy metaphors. As soon as one has aged beyond its “best before” date, their endless search for a new one continues unabated.

The Tragedy of the Communicative Commons

A powerful metaphor is useful. Metaphors provide a unifying concept for new and disparate problems. They also provide common language to link new challenges – like emerging privacy threats – to familiar ways of thinking and doing. This is essential to citizen interest and action. But privacy advocates have recruited metaphor to their cause since at least the 19th Century and what have they to show for it? Not much. Apathy remains the order of the day, with privacy interests often subsumed by the domain of consumerism. There are many reasons for this, but a key one, I would argue, is that advocates have failed to recognize that reliance on metaphors may do more harm than good in the informational privacy wars.

First, privacy metaphors both embody and perpetuate the very consumerism they must battle. Consumerism, as noted, is the cultural driver of information privacy’s problems. Over and over people are willing trade off privacy for consumer convenience. Yet a metaphor cannot raise broad public awareness about privacy until it passes into popular cultural use which, of course, melds it to the fabric of consumerism which drives popular culture. The result is that every clever or original privacy metaphor, once ubiquitous enough to be effective, is co-opted by the forces it was conceived to oppose. We can see this with every famous or popular privacy metaphor. Take, first, the House-as-Castle metaphor invoked by Warren and Brandeis. Would they have guessed that in addition to offering a groundbreaking work on privacy, they were also implicitly affirming the growing commercial and consumer message of the day? That is, the ideal of the well furnished, stocked, and technologically equipped home. Or take privacy’s most famous metaphor Big Brother. Popularized in George Orwell’s dystopian text 1984, how ironic that Apple chose 1984 to appropriate the metaphor for commercial use. Apple, whose hasn't been great on privacy lately, used (or abused) a privacy metaphor to make computer ownership an ideal of personal empowerment.

Second, a metaphor, rather than being a helpful tool, can constitute an obstacle for clear thinking and coordinated action on privacy. Metaphors, in a way, are constantly dying; as they pass into common or popular use their euphemistic and ironic force recedes, along with their usefulness. The final destination is cliché. That might sound like a linguistic problem, but dying metaphors—so loved by privacy theorists— also pose challenges for law and public policy by negatively affecting citizen action. The problem, Orwell pointed out, is that they promote laziness— their conventional and clichéd use allows citizens to avoid thinking for themselves and creating their own ideas or metaphors to tackle the challenges to be confronted.

And this is not just abstract fluff. There are case studies in other areas showing how metaphors can mess with clear and systematic thinking. From empirical studies concluding that "conventional" metaphors pose problems for scientific theory, to policing failures, to the fabrication or "social construction" of "problems" for law enforcement to address. Privacy metaphors, no doubt, may be leading us down similarly false paths.

I call this the Tragedy of the Communicative Commons for privacy metaphors. Such metaphors have benefits, but their passage into popular cultural re-affirms the consumerism that threatens informational privacy itself, and, additionally, can negatively impact action and coordination among citizens.

Directions Forward

But is tragedy inevitable? Not necessarily. First, privacy theorists need to stop relying so heavily on metaphor. A clever slogan may be helpful, but there may be better as yet tested strategies to promote privacy among the public. One possibility is to follow Daniel Solove’s lead, who has recently focused on formulating taxonomies of privacy threats; that is, a clear, and easily communicated charting of all types of privacy threats for consumers or citizens in a given sector. Such an approach certainly offers a great wealth of information for public awareness and also, to be blunt, treats people less childishly. Dumbing-down the complexities of privacy in a word or slogan is absurd. Second, if privacy metaphors must remain then advocates need to out-think the potentates of consumerism; appropriation of metaphor is not inevitable if the metaphor itself cannot credibly used for commercial purpose. This requires innovative and artful thought; but, for example, surely it would be difficult to appropriate the cockroach-like and privacy starved Gregor Samsa, of Kafka’s anti-consumerist classic Metamorphosis, to promote consumer goods?

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Why is the appropriation of the metaphors by the machinery of capitalism so dangerous? Does the commercialization of the metaphors weaken their ability to communicate privacy threats? While commercial interests right now undeniably stand to benefit from the erosion of privacy (and are actively working towards that end), I don't see anything in consumerism itself that puts it fundamentally at odds with privacy. If people's actions actually corresponded to their stated views about privacy, would the market not reward privacy-preserving companies?

I entirely agree that metaphors can discourage clear thinking about privacy issues. The real work to be done, it seems to me, is in figuring out how to communicate the dangers to the public viscerally without dumbing down the issues. This is where I think Solove's approach of taxonomies fails— It's a great tool to facilitate more clear thinking and academic inquiry, but the message is not visceral enough to get through to the apathetic.

-- AndreiVoinigescu - 11 Mar 2009

Thanks for the comment, Andrei. Arguably, consumerism is fundamentally at odds with privacy, since, at bottom, it aligns happiness or satisfaction with consumption. And consumption is hard to square with privacy. Privacy, by its very nature, is about preservation; about guarding intimate spaces from intervening forces, be they authoritarian or otherwise. One of those intervening forces is consumerism's need to expand, grow, and consume. But for the sake of argument, let's say you are right that consumerism and privacy are not irreconcilable. That reconciliation will nevertheless be difficult for the same reasons. As you note, commercial interests are actively pushing an anti-privacy consumerism and let's be honest: they have a head start and lot of momentum. A few centuries worth, actually. The problem with privacy metaphors being appropriated by these forces is: first, not only do their superficial cleverness or salience distract from the task at hand-- addressing why people choose convenience over privacy -- but in the process they silently promote and strengthen anti-privacy consumerism. Second, through appropriation privacy metaphors lose capacity to effectively oppose that momentum with, as you say, a visceral enough message. Is the Big Brother metaphor about privacy? Or is it about Apple computers and personal empowerment by consumer purchasing? The fact both are probably right shows that the metaphor is likely no longer an effective tool for privacy promotion.

-- JonPenney - 12 Mar 2009

I think discussing privacy metaphors is interesting and worthwhile, but I hesitate to say that privacy is where it is because our metaphors have failed us. I think at the end of the day how much you care about privacy is probably very closely related to how much you trust the government and without a good sense of this country's history, no metaphor is going to help.

On another note, I actually really liked the first paper you posted and am sorry to see it go.

-- KateVershov - 18 Mar 2009

Kate - thanks also for the note. I, too, have been smitten in the past by privacy metaphors, but likewise have wondered if, why, and how they might have failed us. This post is part of the product of that thought process.

As for the "Fourth Amendment Goes to Canada" paper, I decided that I needed to tighten up the writing and the analysis a bit more, including offering a few punchier solutions. Have no fear, however, I think it may make a version 2.02 re-appearance in the form of my second paper!

-- JonPenney - 18 Mar 2009

Jon - I want to push you a bit on the question raised by Andrei: how is the appropriation of privacy metaphors by corporations detrimental to privacy? You responded with two points: 1) The transformation of expression to the metaphor dilutes the metaphor's original message and 2) The metaphor is used to strengthen consumerism, which further weakens privacy.

On point one, I think that the transformation of the expression can make all the difference, and may not have the dilution effect you claim. For example, is this image any weaker after you've seen this video, or been to this website? I personally do not think so.

My objection to your second point is that I think that Andrei is correct concerning the fact that consumerism and privacy are not at odds, and that strengthening one does not necessarily harm the other. I think the appropriation of metaphors can be used for both profit and privacy. For example, if this company used the big brother metaphor to sell it's products, wouldn't that help both consumerism and privacy? Also, to take the castle example, how does wanting a modern castle with flashy items make us less wary of privacy violations? Does wanting cameras for your home so that you know if someone is in the woods watching you defeat your privacy?

Let me be clear that I do not think that my objections necessarily defeat your thesis, I am just trying to point out some holes that I perceive in your argument. Thanks for an interesting essay. -- JustinColannino - 20 Mar 2009

Justin - I wish I had thought of the show "Big Brother" for my original post! I agree that the Big Brother image still seems compelling notwithstanding the success and popularization of the show by the same name. But I still maintain that this very popularization weakens the cultural currency of the metaphor as useful tool for privacy. The ultimate message of this particular appropriation of the metaphor is that having Big Brother watch you -- or millions of viewers for that matter -- is not necessarily a bad thing. It might even be fun, even naughty, and, at worse, just boring and banal (Big Brother is all three, with an emphasis on banality). That latter sentiment seems pretty consistent with broader attitudes about informational privacy: so you lose a little privacy by giving away a bit of banal data. And maybe someone might see that banal data. Who cares?

Of course, cultural commentary is notoriously hard to prove -- and hard for you to disprove -- but I am not convinced that even if the image of Big Brother remains disturbing at a glance, reliance on the metaphor helps, rather than hurts, the cause. I think its more than just dilution of message; the metaphor itself covertly and actively promotes anti-privacy attitudes.

On the second point, I actually hope you and Andrei are right; that privacy can ultimately work with consumerism. Certainly, as you both point out, consumerism might promote privacy if people see privacy-promoting goods as something worthwhile pursuing and consuming. But I remain skeptical, at least until we fully face the difficulty of reconciliation. There seems to be a desire for privacy out there-- so why hasn't some smart capitalist figured out how to make money off of it? The answer might be that it is just so much easier making money by pursuing practices that erode privacy-- consumer data mining and surveillance to construct efficient marketing models and establish brand loyalty through feedback of consumer preferences. Sure, a few merchants might make some money off cameras or anonymizing software, but I cannot see this turning the tides in privacy's favor.

In any case, thanks for the links and note-- I've actually been meaning to fire a response to your great piece on social movements and copyright, so keep an eye out!

-- JonPenney - 26 Mar 2009

• Seems to me the conversation here got at most of the points very well. I think once again that it's a good showing on all sides. But perhaps one last iteration of the same basic question might motivate some further attention in revision: can you give a concrete example of the obstructive intellectual laziness caused by metaphors? I'm not adverse to the intention you have here: The Invisible Barbecue (to take only one of my writings about which it would be true) started from a similar rumination on the harm done by metaphors. But I think that it's helpful actually to show how someone or some people have demonstrably suffered from the problems you assert metaphor creates.

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