The Future of Privacy Law? A Comment on Solove/Hartzog’s ‘Kafka in the Age of AI and the Futility of Privacy as Control’

Abstract

This Comment engages with Daniel Solove and Woodrow Hartzog’s thought-provoking claim that ‘privacy as control’ is increasingly ‘futile’ in an era of ubiquitous AI. We share their concern about the profound power imbalances and structural opacity that characterize today’s data-driven systems, and we recognize the urgency of rethinking traditional privacy frameworks considering these challenges. At the same time, we respectfully suggest that their critique may understate the potential of a reimagined, more robust vision of individual control within privacy law.

We raise three considerations in support of this view. First, the prevailing model of individual control they critique does not fully reflect the richer, human-centric approach to personal data that law can (and should) aspire to. Second, casting individual and structural approaches as oppositional creates a false dichotomy. In practice, these dimensions are interdependent and mutually reinforcing. Effective privacy governance requires both empowered individuals and robust structural safeguards to establish a data ecosystem that genuinely serves the interests of individuals and the public. And third, rather than endorsing resignation or fatalism, Kafka’s work can also be read as a call to reclaim dignity and agency in the face of bureaucratic and technological opacity.

We therefore propose a revitalized framework for privacy law that affirms both meaningfully supported and feasible personal agency and strong institutional safeguards. By integrating these complementary dimensions, we aim to contribute to a constructive and forward-looking dialogue on how privacy can endure as a viable and principled right in an increasingly complex and algorithmically mediated world.