Paper by Lex Gill: “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….(More)”.
…In 1986, the American management guru Tom Peters popularized the organizational theorist Mason Haire’s dictum that, “What gets measured gets done,” and with it a credo of measured performance that I call “metric fixation.” In time, the devotees of measured performance would arrive at a naive article of faith that is nonetheless appealing for its mix of optimism and scientism: “Anything that can be measured can be improved.”
In the intervening decades, this faith-based conceit has developed into a dogma about the relationship between measurement and performance. Evangelists of “disruption” and “best practices” have carried the new gospel to ever more distant shores. If you work in health care, education, policing, or the civil service, you have probably been subjected to the policies and practices wrought by metric-centrism.
There are three tenets to the metrical canon. The first holds that it is both possible and desirable to replace judgment – acquired through personal experience and talent – with numerical indicators of comparative performance based on standardized data. Second, making such metrics public and transparent ensures that institutions are held accountable. And, third, the best way to motivate people within organizations is to attach monetary or reputational rewards and penalties to their measured performance….(More)”.