Law, Metaphor and the Encrypted Machine
Accepted for publication in the Osgoode Hall Law Journal Volume 55:2 (Spring 2018). This version is a working paper.
39 Pages Posted: 18 Mar 2017 Last revised: 7 Feb 2018
Date Written: 2017
The metaphors we use to imagine, describe and regulate new technologies have profound legal implications. This paper offers a critical examination of the metaphors we choose to describe encryption technology in particular, and aims to uncover some of the normative and legal implications of those choices.
Part I provides a basic description of encryption as a mathematical and technical process. At the heart of this paper is a question about what encryption is to the law. It is therefore fundamental that readers have a shared understanding of the basic scientific concepts at stake. This technical description will then serve to illustrate the host of legal and political problems arising from encryption technology, the most important of which are addressed in Part II. That section also provides a brief history of various legislative and judicial responses to the encryption “problem,” mapping out some of the major challenges still faced by jurists, policymakers and activists. While this paper draws largely upon common law sources from the United States and Canada, metaphor provides a core form of cognitive scaffolding across legal traditions.
Part III explores the relationship between metaphor and the law, demonstrating the ways in which it may shape, distort or transform the structure of legal reasoning. Part IV demonstrates that the function served by legal metaphor is particularly determinative wherever the law seeks to integrate novel technologies into old legal frameworks. Strong, ubiquitous commercial encryption has created a range of legal problems for which the appropriate metaphors remain unfixed. Part V establishes a loose framework for thinking about how encryption has been described by courts and lawmakers—and how it could be. What does it mean to describe the encrypted machine as a locked container or building? As a combination safe? As a form of speech? As an untranslatable library or an unsolvable puzzle? What is captured by each of these cognitive models, and what is lost? This section explores both the technological accuracy and the legal implications of each choice.
Finally, the paper offers a few concluding thoughts about the utility and risk of metaphor in the law, reaffirming the need for a critical, transparent and lucid appreciation of language and the power it wields.
Note: DISCUSSION DRAFT ONLY As this document is a discussion draft, please do not cite or reproduce this work without the author’s written permission.
Keywords: law, legal theory, legal metaphor, encryption, technology law, compelled decryption, self-incrimination, Canada, United States
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