Lex Gill - Law, Metaphor and the Encrypted Machine
Channel: NorthSec
Date: 12/08/2016

https://www.nsec.io/2016/04/law-metaphor-encrypted-machine/

Encryption technology raises unavoidable and ideologically loaded problems for courts—as recent cases like the FBI v Apple debate have bluntly illustrated. This tension has meant a real risk of shortsighted policy decisions that both jeopardize our civil liberties and compromise commercial interests. We all have a stake in the outcome of these debates, but the legal arguments are normally murky… at best.

Judges reason through analogy and metaphor, using conceptual bridges to transition between old and new technologies in the law. But when new technologies inherit old metaphors, they also inherit old rules, models and limitations. So how do courts and lawmakers think about the encrypted machine—and how should they?

This talk explores the metaphors we use to imagine, describe and legislate modern encryption technology — and offers a few thoughts about the ones we might want to choose. Together, we’ll examine the historical model of encryption as “weapon,” alongside competing and interdependent narratives of encryption as tool, speech, computation, translation and right.

So what “is” the encrypted device to the law? A locked box? An untranslatable book? Something else entirely? More importantly, what might the legal implications of that choice be for issues of procedural fairness, the criminal law, national security or human rights?