Thanks to a segment this past weekend on NPR's On the Media, I learned about some Federal court cases reported in the Washington Post and the New York Times, in which the government's right to search our hard drives has been questioned.
Turns out metaphors really matter.
If a computer is considered an extension of our brain, as any good reader of McLuhan would, then the Fifth Amendment's protection against self-incrimination prevents the government from demanding that we provide a password or encryption key to gain access into our computer devices—no matter what naughty bits we might have in there. On the other hand, however, if a computer is no more than a super-powered notebook or file cabinet, then the government can demand we give them the key and have at it.
At stake are innumerable issues. In terms of legal epistemology, at what point does an object differ enough in degree so as to constitute a different class of thing altogether? After all, though a computer can be thought of as a notebook—in fact, some laptops are classified as notebook computers—it can contain so much more, including highly private information, such as medical records. But does that really elevate it to the status of brain?
In addition, these court cases highlight another unspoken issue in American society: that no one, no matter what nationality, has any rights at our borders. Border security is such that law enforcement can search and detain anyone. And if you refuse to comply by, say, willingly offering your password so they can search your computer, they can detain you indefinitely or turn you away. Who, then, would refuse, even on principle, knowing that they will miss a connecting flight, miss a day of work, or be prevented from returning home?
Finally, these cases point out a major generational flaw in our judiciary. As Adam Liptak notes:
I think that appeals court judges are older, don't much work in the digital world. I was having lunch the other day with two appeals court judges here in New York who told me that when they wanted to communicate with another judge in the court, they faxed a memo over. I said, does anyone use email? He goes, no, no, no. Email is too modern for us.If judges are going to weigh in on such matters, shouldn't they be at least familiar, if not actually conversant, in all things digital?