The Analogy and the Overreach

-- By BerrakComert - 20 Dec 2011

Internet and new technologies rooting into our daily lives bring with them new legal problems and questions. Especially given our fear of technology and trying to understand it, the easiest way to categorize and solve these new problems is to resort to analogies and use our knowledge and experience that have already been there for centuries. In light of this seemingly simple approach, we can think of everything that is happening in this new segment of our lives the same as what we know except in a different environment. However, this oversimplification cannot be accurate to cover what the fast developing digital world keeps offering. Second, the most exciting thing about the Internet era was the freedom it promised. This oversimplifying analogy of adapting our old concepts to the digital world does not only violate the freedom of the digital era but makes us even less free than what we began with.

To answer our questions about the new technologies, we turn to what we know to better understand new technologies. Is e-mail the same as a regular mail? Are our laptops the same as our filing cabinets? Is a song we download online the same as buying or stealing a CD? In discussions relating to the Internet, many analogies are widely used to serve demagoguery. A couple of months ago, a guest speaker in a law class was still basing his defense of SOPA with a comparison to stealing bikes from a bike store. Such example of course is an extreme and insensible use of an analogy to understand a legal concept, however most analogies fail to grasp new concepts in their entirety.

We have ahead of us a lot of decision making on various areas of law from fourth amendment rights to intellectual property rights. Trying to treat the new technologies the same way as what we already know does not seem to provide an efficient, accurate or a desirable solution.

The basis of the analogies that are used is the same or at least similar function of the new technology and the old technology. It is natural to apply the rules that are applied to a filing cabinet to a digital filing cabinet. It seems to make sense but the problem arises in the differences between two subjects. The cell phone can be said to be like an address book because it stores our contacts. But it can also be said to be like a laptop because many smart phones have common functions with a laptop.

Analogies, not surprisingly are based on the function of the device, or technology at hand. However, things have more than one characteristic. In this respect, it is important to look at the other characteristics. A laptop carries our files like a filing cabinet. After this functional alikeness, the question to ask is how is a laptop different? A laptop stores exponentially more information than a filing cabinet. Furthermore a laptop carries information that we may not know that it is there. It does not only store more, but some of the information that we have on our laptops is there without our intention to store it. The new technologies are much more efficient in performing their duties and this “efficiency can disrupt the citizen-state relationship to the point where functional analogies, even while technically valid, are deemed an inadequate mode of legal reasoning”.

In order to protect the balance of citizens’ privacy against government surveillance, as Milligan suggests, analogies cannot be solely based on function of new technologies. The amount of data that can be accessed, the extent of privacy violated and the invasiveness of surveillance must be taken into account as well as the intent of the users while using such technologies. Another thing to consider is whether our behavior is the same in physical environment and the Internet or with old and new technologies? Most of us are not very tech-savvy users and we are usually not even aware of the footprints, cookies we are leaving behind ourselves. While accessing certain sites on the Internet we waive a lot of our privacy but rarely we do it knowingly and intentionally.

Whichever metaphors and analogies we use to try to understand the Internet and the new technologies, it is important not to narrow our perspective to the metaphor and ignore the distinctive features of the things and concepts we are comparing. Analogies can be helpful tools to think but cannot be walls to frame our understanding of what is new. Insisting on strict application of analogies as we have seen in the case of online distribution of goods to physical distribution of goods, not only fails to serve the purpose of reaching the most efficient and valuable solution for everyone but also it is bound to fail in its implementation as its assumptions are simply not valid anymore. Analogies can be “convenient” and sometimes very useful to give insight and perspective. However it is always important to be able spot the distinctions to solve the problems caused by these differences.

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Computer Hardware, A Filing Cabinet?

The Analogy and the Overreach

If you simplify this sentence, by throwing away all the verbal formulas, like "rooting in our lives" and "how we relate" and "new elements of our lives," you will see that it means "Rapidly changing technologies raise basic questions about how we live." You will then see that it's a bad sentence with which to begin your essay, because it isn't actually an idea: it's just a platitude. Writing in a too-complicated way is interfering with your thinking. Editing yourself well helps you to clarify what you think, not only what you write.

The easiest way to categorize and solve these new problems is to resort to analogies and use our knowledge and experience that have already been there for centuries.

Our knowledge and experience have only been "there," by which you mean "here," for a few years. Our consciousness, our mode of cogitation, was born with us. Traditional metaphors are no more useful to us than ones we fashioned for ourselves in explaining new phenomena to us. And the metaphors of people younger than ourselves, who have met phenomena new to us as simply part of the world, to be learned about as everything else is learned about, will be more useful to us than those fashioned by people who lived and died without seeing what we see. So why is what you are saying true? It is true, in the sense that what is "easiest" for us is not the best way to think. You could pursue the question "Why do we think in the fashion that is 'easiest' rather than the one that is most productive?" This is a profound question that leads in many useful directions. More importantly, you could simply discard the line of thinking that depends on unproductive approaches, and think better. Instead of writing about how transitional people think, who have to use metaphors to deal with digital technology, ask how people who know the technology directly presently think, might think, have to think. That will lead you to some even more profound questions.

In light of this seemingly simple approach, we can think of everything that is happening in this new segment of our lives the same as what we know except in a different environment.

Maybe we can. Or maybe we cannot. In which case, we will become partly blind, aware only of what we can explain to ourselves using those metaphors. Others with which we might easily come into contact, or which we might make for ourselves, would produce different partial views. So at least using multiple overlapping metaphors would be an improvement. Or one could dispense with metaphor and learn about the phenomena directly.

However, this oversimplification cannot be accurate to cover what the fast developing digital world keeps offering. Second, the most exciting thing about the Internet era was the freedom it promised. This oversimplifying analogy of adapting our old concepts to the digital world does not only violate the freedom of the digital era but makes us even less free than what we began with.

You need to tighten your writing, Berak. By clarifying what you write you will clarify what you think. As I indicate above, the course of your argument is being dictated by distractions. If you were to take the sentences that seem to express your meaning and subject them to real questioning, the interrogation would make you a more powerful thinker immediately. Begin by undecorating what you write. Choose the simplest words you can without eliminating necessary parts of your idea. Use as few as possible. Now look at the idea each sentence expresses as though it were a stranger. Don't be comfortable with it. Make it earn the trust you place in it. You don't care how old it is, or who it slept with last night, or last year. You want to see it clearly in the light of today.

Soon you will discover that most sentences are themselves only jumping-off points. The real idea is somewhere in the neighborhood of the sentence you wrote. Often they are as close to one another as day to night, and no less different.

One of the analogies of the digital world utilized by courts and legal scholars suggest that computer hard drives are like filing cabinets that we put our files. But our computers contain the broadest data about us in the richest variety. Further, it also contains a lot of information about us, our past or present, which we do not even intentionally keep there.

And in which respect is any of that unlike "real" filing cabinets in the real world?

Why is the metaphor either right or wrong? When data is stored by analog printing on paper, there are storage systems for paper, called "filing cabinets," and comprising everything from personal papers scattered around one's house in a comparatively (or completely) disordered way, and meticulously maintained, decentralized, controlled warehouses of documents maintained by late 20th-century businesses? When data is bits, it is stored in everything from personal computer hard drives never backed up under any circumstances, and maintained by people who have no sense of how data should be cared for, and vast cloud storage arrays that are deduplicated and instantaneouslt backed up, run by the world's most experienced IT management firms, but which can still be used by a knowledgeable computer user as though they were one big laptop hard drive. The metaphor "a hard drive is like a filing cabinet" is neither right nor wrong because neither term is precise enough to have any fixed meaning. The speaker of the metaphor and its hearer add almost all the content to it, each in no doubt completely different ways, and arrive at conclusions in any given situation that may be perfectly serviceable or entirely deceptive.

When discussing computers as source of evidence, especially in the context of cybercrimes, the most commonly discussed examples are child pornography cases. Due to dreadfulness of the crime alleged, the exorbitance of violating the privacy of the suspect computer owner appears more tolerable.

To whom? That's not the law in our legal system, and is not the principle on which police investigation is conducted. Leaving aside whether there is more "dreadfulness" in possessing pictures of children being sexually abused than there is in cheating poor people out of their houses, which I doubt, there is no basis on which we can or should distinguish among types of offenses with respect to the constitutional or other legal limits on investigation.

The necessity of such invasive measure becomes more questionable in cases of tax fraud, In the Matter of the Search of: 3817 W. West End, or illegal steroid use by professional athletes, United States v. Comprehensive Drug Testing.

Measures of investigation are not justified by necessity.

Examples from other places in the world can be much more dramatic and clearer to display the level of the privacy rape. A Turkish journalist, Ahmet Şık, has been detained since March 2011 along with other journalists, the main evidence against him being the copy of the unpublished book he wrote, which was found during a warrant in his home and allegedly in the computers of a news website, which was alleged to have connections with an alleged ultra-nationalist organization in Turkey with possible ties to members of the country's military and security forces, a military coup plot, or merely a conspiracy for some. As it can be seen, there could be a lot vague allegations, blurred line of crimes, and everything you produced in your life lies at the hands of some police officers.

But is the basis of the evident injustice that a document may have been found in a computer as well as in a physical search of a home, or on the substantive basis of punishing someone for a thought crime?

As the severeness of the offence changes or even the definition of the offense blurs, it is more difficult to justify the necessity of such invasive measure. Even if governments want to treat our computers as filing cabinets, do we use them as filing cabinets, or do we treat them as a private area where we imagine and expect to be more free and untouchable by others?

Once again, as necessity is not a basis for the legitimation of investigative measures under our law, this is an irrelevant inquiry,

Some limitations on computer searches and seizures applied by U.S. Courts

In order to protect the 4th Amendment rights of the citizens, the U.S. Courts have adopted various restrictive measures limiting the computer hard drive searches.

Firstly, it is very important to separate the search warrant from the seizure warrant. As a seizure of hardware for further search gives immense amount of information, such broad authority for an excessive privacy violation must be explicitly granted.

No, not because hardware seizure gives large amounts of information, but because the Fourth Amendment contains the requirement that places to be searched and things to be seized must be stated with particularity. In fact, the grant of seizure authority, though it must be stated separately in the warrant and called for separately in the affidavit backing the application, will be approved nearly automatically.

The second set of limitations on the searches are time limitations. Some of the Courts have chosen to impose some requirements relating to the timeframe of electronic searches as in United States v. Brunette. However, the judges can extend the timeframe upon request from the government and accordingly timeframe could be still long even with these limitations. Further, the difference of what can be found by the police in 60 days or more, does not help much with the privacy concerns.

This paragraph is obscure. You need to explain the rules clearly, and make whatever point you mean to make about them on the basis of the description you've provided.

Another limitation on the searches concerns access to the information that was not within the scope of the warrant. Judges may require ex ante search protocols for a search that the government wants to conduct and further limit the use of further evidence that was found in plain view. As expressed in United States v. Comprehensive Drug Testing, these limitations are crucial as they try to block overreach attempts by the government and decrease the “government’s incentive to execute computer warrants on a broad way that would bring evidence to plain view”.

Further limitations concern the return of the seized hardware and destruction of the seized material after the consummation of the search period.

Whether these limitations are applied or not, a hardware search and seizure are still too invasive for most alleged crimes. Warranting such extraordinarily invasive privacy violation must further be narrowed to a category of few crimes with strong evidence supporting and requiring necessity of such measure.

This is not our law. You're making this up.

Conclusion

The amount and sort of information that our computers contain are extraordinarily superior compared to our physical filing cabinets. We document our lives like we never did before through our online devices. Furthermore, our computers do it for us when we do not intend to document anything by noting every website we visited, every article, picture we looked at. Also, due to the devices we use such as unencrypted e-mails, the privacy of many other individuals are at stake with the privacy of our computers. As easy a solution can computer searches for government be, it is the most invasive attack to our privacy. The limitations set by judges or by the law can only be of any meaning where we can have no doubts over the intentions of the government or its security officials. In the absence of that, the best solution yet seems to be training ourselves on being smarter about how we use our computers.

There's no real relation between the introduction and conclusion, which seem to be about general issues, and the intervening text, which sketches out a couple of implications of the Fourth Amendment particularity principle in relation to digital searches, and which repeatedly misstates our search law to distinguish forms of investigation on the basis of "seriousness" or "dreadfulness" of offenses, and to state that methods of search are justified by "necessity." I think the best way to improve the piece is to leave this material on search law out, and to write a development of the introduction that would permit a more informative conclusion.

Hard Drives, File Cabinets?

One of the analogies of the digital world utilized by courts and legal scholars suggest that computer hard drives are just like filing cabinets that we put our files. But our computers contain the broadest data about us in the richest variety. Further, it also contains a lot of information about us, our past or present, which we do not even intentionally keep there.

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