Kafka and Orwell: The rest of this headline has been redacted by the NSA

By Ben FitzGerald


Best Defense office of
national security literary affairs

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 provide accurate
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.

Ben FitzGerald is a senior fellow and director of the technology
and National Security Program at the Center for a New American Security. He spelunks in the relationship between
strategy, technology, and business as it relates to national security. You can
follow him on twitter @benatworkdc.