Hummingbirds and Platypuses: Terminology Matters

In the first grade, I was sent to second grade for math classes. I was five. I was close to the youngest person in my school for first grade (simply due to my birthday being in December), so many of my classmates were already a year older than I was, and second graders were two or more years older than that. One day, the teacher told us "No talking." So I whispered. My verbal logistics were well-rewarded with the only time-out I ever had in school. I explained that whispering is not talking, but she was having none of it. 

In a poorly worded segue, let's transition to a deposition. In 2010, an Ohio Supreme Court case contained a ten-page argument over the meaning of the word "photocopier" from a deposition of the head of IT of a county recorder's officer. You can watch a verbatim reenactment of the transcript here. It is well worth the time, for attorneys, IT, or laymen. Both sides seem slightly ridiculous, but also logical.

Second poor segue alert (but stay with me...it all comes together): That is a problem we have with technology and law. We use terms that when in question can have minute differences that matter. The word makes sense. The concept makes sense. People generally understand what the intent is with the law, but when trying to determine whether a specific technology or its use falls within or outside the law, it becomes quite complicated.

For example, let's play off the transcript above. If there is a rule that a document cannot be photocopied - we know it means, no copying of the document, right? Or does it? Does it mean no photostatic copies - or no digital scanning? or who knows, someone may have an old carbon copying machine lying around just waiting to be used to circumvent the new rule.

Words have meaning and technology is testing the ultimate limits of the words used in our current laws. Courts do their best to interpret law based on its intent, but that intent can usually only be present if the way in which something functions can be imagined (Constitutional wording aside - that is a whole 'nother argument). And sometimes, if the intent can be inferred - or is even explicit - the wording of the law/rule/regulation/guidance is so ambiguous that the courts can do nothing but decide against what seems to be fair to a layman.

This is where data protection and privacy seem to reside. Technology and its resulting misuse far outstrips the incremental changes in law. We're not even talking cigarette boats vs. paddle boats. We're talking hummingbirds vs. platypuses (platypi was incorrect). They exist on the same world and breathe the same air, but they probably do not play well together - seriously, a platypus could squash the hummingbird, but the hummingbird moves too fast for the platypus to catch. Hummingbirds might not even notice the platypus exists! Hummingbirds are stunning to observe and need to keep moving. Platypuses need to be protected and well-grounded. One can absolutely exist without the other, but both need to co-exist with humanity. (wow, this analogy really works all the way through for technology and privacy.)

(and five-year-olds who play with words just might become attorneys.)