A recent ad for a television show about digital privacy featured an ominous pair of leering eyes and warned, "Who's watching you right now?"
That is the classic image used to evoke the specter of "Big Brother" ever since George Orwell wrote "1984." But in his new book, "The Digital Person," law professor Daniel Solove suggests that Orwell doesn't provide the best metaphor of the threat posed by computer databases that harvest every detail of our lives. Instead, Solove looks to Franz Kafka's "The Trial" to capture the sense of hopelessness, frustration, and vulnerability created by these "digital dossiers."
The way we think about privacy is wrong, Solove claims. There is no central power using databases to oppress us. But companies are eager to find new buyers, law enforcement agencies are hunting for criminals, and thieves are hoping to steal identities.
The problem, as Kafka's Joseph K. discovered after being arrested, is that we are almost entirely powerless against these vast bureaucracies scrutinizing our lives.
Jeffrey Rosen, Solove's fellow George Washington University law professor, is a more creative and accessible privacy thinker, but Solove's book is useful, particularly as an overview on how these private and government databases grew in sophistication and now interact with one another.
Almost everyone knows that databases have the power to decide whether we get a job, a loan, or junk mail. But the breadth of databases that he describes - and their ability to slice and dice the population into tiny subsets - is astonishing. For example, one company markets a list of 5 million elderly incontinent women.
The information flows in all directions, particularly since the 9/11 attacks, as government and corporate America have only gotten cozier. Financial service companies and airlines have proven more than happy to hand over whatever is asked of them.
The scariest part is how ill equipped the legal system is to protect citizens or consumers. Solove offers an overly long account of how common law, statutes, and the Constitution all provide inadequate safeguards. Tort laws are largely designed to respond to invasions by individual wrongdoers. Contracts aren't of much more use, given the unequal bargaining power between consumers and large corporations. After all, we can't negotiate the terms with companies before buying a cell phone or Internet service. Take it or leave it.
Solove advocates a new architecture of laws to regulate relationships among companies, government, and consumers. He argues that companies that collect personal data should have the legal obligations of fiduciaries. Few companies are likely to embrace that proposal, but lawmakers may be coming to the same conclusion. New federal laws limit the uses of social security numbers and require credit-reporting agencies to provide consumers with free reports (During the implementation stage, which began Dec. 1, access depends on where you live in the United States.)
Clearly, the only way to tell when and how your personal information is being watched is to watch out.
• Seth Stern is a reporter for Congressional Quarterly in Washington D.C.