Privacy is not doing so well these days. Today, the greatest threats do not concern places like the home— the spheres of privacy and 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 happen to do very little about it, or, at least, 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. Sure, the house would be a one's “castle”; but by the 1950’s that castle would be a consumer paradise, lined with bobbles and trinkets not moats or tapestries. Or take privacy’s most famous metaphor Big Brother. Popularized in George Orwell’s dystopian text 1984, there must have been some irony intended in Apple Inc.’s choice of the year 1984 to appropriate the metaphor for its own commercial use. Apple, whose own track record on privacy lately leaves much to be desired, used (or abused) a privacy metaphor to make personal computer ownership an ideal of personal empowerment. That, my friends, is capitalism and consumerism at its efficient best (or worst).

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 popular and clichéd use allows citizens to avoid thinking for themselves and creating their own ideas or metaphors to tackle the challenges to be confronted.

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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