Law, Metaphor, and the Encrypted Machine

Abstract

The metaphors we use to imagine, describe, and regulate new technologies have profound legal implications. This article offers a critical examination of the metaphors we choose to describe encryption technology and aims to uncover some of the normative and legal implications of those choices. The article begins with a basic technical backgrounder and reviews the main legal and policy problems raised by strong encryption. Then it explores the relationship between metaphor and the law, demonstrating that legal metaphor may be particularly determinative wherever the law seeks to integrate novel technologies into old legal frameworks. The article establishes a loose framework for evaluating both the technological accuracy and the legal implications of encryption metaphors used by courts and lawmakers—from locked containers, car trunks, and combination safes to speech, shredded letters, untranslatable books, and unsolvable puzzles. What is captured by each of these cognitive models, and what is lost?.