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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