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Kafka, not just Orwell, helps us understand surveillance programs.
Edward Snowden's revelations have drawn frequent and understandable references to George Orwell's dystopian vision from 1984, with notable mentions by Judge Richard Leon and Snowden himself. Orwell offers a powerful literary metaphor for understanding the perils of a surveillance state. However another literary master, Franz Kafka, can help us understand the deeper philosophical and governmental issues at hand today.
In The Trial, Joseph K begins his Kafkaesque nightmare in shock at his arrest for an unnamed crime he does not know he has committed. Unlike Winston Smith, K. "...lived in a country with a legal constitution, there was universal peace, all the laws were in force..." making his subsequent treatment all the more horrifying. Judged by an unnamed organization, K.'s world is turned against him, he is consistently denied access to information about his case, and any insight he gains simply reveals more secret bureaucratic machinations, further heightening his helplessness and isolation.
Storing and analyzing people's data without their knowledge "affects the power relationships between people and the institutions of the modern state" in a Kafkaesque manner, as Daniel Solove argues. But the problem goes beyond this argument. Taking a ‘big data' approach to surveillance moves analysis from causation to correlation. ‘Collecting everything' to find potential threats therefore means that the data of the innocent is being used to find the guilty, analyzing all parties without their awareness.
The tools for this collection and analysis aren't intentionally overt as in a totalitarian Orwellian state. Rather, backdoors and bulk collection techniques subtly leverage the everyday technological tools of free and open societies. This ‘dual use' subversion means that, like K., we don't just suffer from the shock of surveillance (or arrest) but from losing trust in our technology and government while also wondering what other actions are being taken without our knowledge. As with K., the answers are unknowable. The director of national intelligence does not provideaccurate testimony on their surveillance programs and if Apple, RSA, Cisco and their peers were in fact creating surveillance backdoors with the NSA, they would still be forced to issue similar denials.
We do not yet live in an Orwellian state so, in theory, we have legal recourse as another means to ease our surveillance concerns. Unfortunately, legal process has been perhaps the most Kafkaesque aspect of this whole affair with ongoing challenges to the Foreign Intelligence Surveillance Court, prohibitions on businesses reporting on NSA data requests, the Department of Justice providing wholly redacted arguments, and judges offering circular arguments.
Considering Orwell and the technical act of collection is vitally important but focusing purely on this problem runs the risk of missing deeper issues or, worse, pushing for reforms that weaken the NSA in areas where it operates legitimately to protect our national security. Transparency and trust, or the lack thereof, are at the heart of both Kafka's writing and our current surveillance issues. Addressing the Kafkaesque aspects of the government wide bureaucracy, policies and laws behind collection programs offers an opportunity to address these fundamental issues.