
Judge claims mobile phone is not a computer - injidup
https://www.theguardian.com/australia-news/2019/aug/19/federal-police-fight-court-ruling-a-mobile-phone-is-not-a-computer
======
random_upvoter
From the headline it's easy to conclude that the judge is ignorant but if you
read the article what actually happened is that he took a narrow reading of
the text of law so as to protect the rights of the accused. I think that is
totally recommendable. People don't use the word "computer" when they talk
about their smart phone. Therefore it's fair to conclude that when a law talks
about "computers", that does not include smart phones, even if they have more
CPU power than a 1990s PC. It's up to the lawmakers to write a better law,
i.e. one that simple states "... and also smart phones".

~~~
stuntkite
While I think the distinction is wrong and stupid, with the state of computer
security legislation in Australia I think it's possible that what the judge
did is right and in defense of personal security. Logically it makes sense in
line with what Woz said about if you change the size or power of something
significantly enough it's a different thing. But I can't help but think that
this distinction is going to be turned around into a weapon against people and
I can promise if that same thing happened in the US, everything would get
weird for everyone pretty quick.

~~~
gamblor956
This question has already been addressed in the US. Luckily there US allows
phones to be multiple things at once, so constitutional protections like the
4th and 5th amendments still apply.

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phire
I'm not sure what the judge is playing at here.

Australia (like many other countries) has codified in law [1] that when there
is ambiguity in a law, the ambiguity must be interpreted in the which best
matches the original intent of the law.

In this case, the intent of the law is to give police the ability to search
encrypted devices, so people can't hide evidence behind technology and anti-
self incrimination rights. There is no evidence that the law intended to have
an exception for phones or other not-computer devices, otherwise it would have
explicitly stated an exception.

It doesn't matter weather you disagree with such a law or not, but the law
exists and the judge is required to resolve any ambiguity in the way that
favours the intent of the law.

[1]
[https://en.wikipedia.org/wiki/Purposive_approach#Australia](https://en.wikipedia.org/wiki/Purposive_approach#Australia)

~~~
rahimnathwani
It is unlikely that, when the original law was written (in 1914?), lawmakers
foresaw that people would store so much personal information (including not
just text, but audio/video) on portable computers. So it's hard to conclude
that their intent was so far reaching.

The judge specifically called this out. Quoted in the article: "“Mobile phones
are primarily devices for communicating although it is now commonplace for
them to have a number of other functions ... Again, the very ubiquity of
mobile phones suggests that, if the parliament had intended that they should
be encompassed by the term ‘computer’ it would have been obvious to say so.”"

When the law was last amended pretty recently (2018?
[https://parlinfo.aph.gov.au/parlInfo/download/legislation/bi...](https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6195_aspassed/toc_pdf/18204b01.pdf;fileType=application/pdf))
and if lawmakers wanted to expand the definition of computer at that time,
they could have done.

But they chose not to.

I can see both sides. It's certainly not clear to me that the lawmakers who
used the word 'computer' many decades ago would have intended search warrants
to cover such a wide set of targets.

Of course, I could be wrong. Perhaps lawmakers then just wanted law
enforcement to have access to ~everything.

In any case, it doesn't seem as clear to me as it does to you.

~~~
jay_kyburz
Perhaps they chose not to because the current definition of computer clearly
covers phones. Which is why this is making headlines.

~~~
rahimnathwani
"the current definition of computer clearly covers phones"

A small percentage of people would use the word 'computer' to describe a
smartphone, let along a featurephone.

Imagine you ask a random person one of these questions:

A) Do you own a computer that has a touch-screen?

B) The computer you use most - how big is it?

C) Do you have a computer that can make a phone call to a landline number?

If the most common answers are:

A) Yes

B) In the range 4" \- 7"

C) Yes

Then I would agree that the definition of 'computer' includes smartphones. If
it includes smartphones, it _might_ also include featurephones.

~~~
DougBTX
The article goes on:

> The law does not define a computer, but defines data storage devices as a
> “thing containing, or designed to contain, data for use by a computer”.

Regardless of whether the phone is a computer, how could it be argued that the
data on the phone is not for use by a computer?

~~~
rahimnathwani
So is a piece of paper with a QR code a 'data storage device'?

What about a book with a 2D barcode on the back?

What about a price sticker that goes on a banana, that can be scanned by a
cash register? Is that sticker a 'data storage device'?

~~~
cr0sh
I'd argue "yes" to all those examples. Books, especially, have always been
"data storage devices"; I don't see why a portion of a book couldn't be by
reduction.

Back in the 1980s, some magazines had a scannable page of barcode-like print
that were programs to load into your computer (I think it was for the Mac,
using a handheld scanner). It didn't work as well as hoped, and didn't last
long.

Some magazines also came with small plastic floppy records, that if you knew
what you were doing, you could load programs from as audio (just like from a
cassette tape). From what I understand, these were more common in the UK and
Europe than in the United States.

Then you have things like punch cards and punched paper tape (and the plastic
variants).

Where do you draw the line?

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huffmsa
I was expecting this to go the other way. That phones didn't need a warrant.

It's a clever reading. If we insist on calling them "phones", then they're
subject to the legal precedence of phones and maybe telegraphs.

And I'm always in favor of anyone who is attempting to prevent authoritarian
overreach. You go Glenn Coco

~~~
torified
IANAL but it is interesting that most Australians don't realise that police
already don't need a warrant to access phone and internet data.

>Reports emerged in the Australian media ‘revealing’ that the AFP was
accessing phone and Internet records without a warrant, as if it was a new
power, when in fact warrantless access by police to communications data has
been in place for over 15 years and reported in detail annually since 2008.
[https://www.aph.gov.au/About_Parliament/Parliamentary_Depart...](https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook44p/Surveillance)

We're already living in a surveillance dystopia, why would accessing the data
on our phones be any different?

With #aabill our government has already shown it couldn't give two shits about
quaint notions like "innocent until proven guilty" and "privacy". They ignored
all legal and expert advice that was given during the consultation period and
pushed their agenda regardless of the will of the people.

Good on this judge for at least making them specify how much overreach they
are going to do - maybe the lobotomized masses will finally say "no" for once.

------
Yizahi
“performs the same functions and mathematical computations as a computer and
is designed to contain data for use by a computer”

I can do the same functions and mathematical computations as a computer and
can contain data to use by a computer (numbers basically). Am I a computer?
From a legal point of view.

~~~
cr0sh
Technically you're a robot made from meat - a "meat-based machine".

You can flip your argument around - at what point do your consider a computer
to be the equivalent of a human? At what point does such a machine deserve
what we currently call "human rights"?

I'm not expecting you to answer this, but rather think about it; it's an
interesting question and topic, with lots of philosophic undertones,
questions, etc. It can't really be answered, because we don't know how we
actually work; that is, how does "mind" arise from "brain"? What is
consciousness? Can a machine become so? Does the substrate, organic vs
inorganic, ultimately matter?

It's a trip down a rabbit hole with (currently) no end in sight...

~~~
Yizahi
Yes, this a fascinating problem and will stay for decades at least.
Personally, at this point in time, I would say that machine which could
imitate human and make independent decisions should be considered human.
Though threshold of the "independence" and "sufficiency" is very hazy. And by
the same logic I don't consider newborn human kids entirely "human" for first
year at least, since they obviously don't possess same level of consciousness
as humans with fully grown brain (or close to it).

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hiisukun
From a quick read, I think the judge is attempting to balance privacy and the
law's impact on someone's rights.

The Crimes Act is old enough that one could make an argument that it was not
envisaged that a warrant to access a "computer" would provide as much
information as a modern mobile phone contains. That the impact on the
individual, and the weight of the responsibility when using such a powerful
warrant has changed since a "computer" was inserted into the Act by amendment.

Just my quick reading. Certainly seems reasonable to at least have the
conversation. Law's are written with purpose and to be interpreted as such,
not solely based on the definition of a computer today - what was a computer
then?

~~~
TheOtherHobbes
It's an interesting example of conflicting domain-specifics - in this case law
vs technology - justifying a valid non-common-sense interpretation.

Law seems to have quite a few cases like this, where "Well, obviously..." just
doesn't apply for good reasons, even though the end point of the argument may
look ridiculous to outsiders.

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willbw
The full judgment if anyone is interested in the particulars.
[http://classic.austlii.edu.au/cgi-
bin/sinodisp/au/cases/cth/...](http://classic.austlii.edu.au/cgi-
bin/sinodisp/au/cases/cth/FCA/2019/1100.html)

------
jhbadger
Legal definitions are not necessarily factual ones. The classic example is the
1818 US Court case "Maurice v. Judd" [1] in which a purveyor of whale oil
wanted to avoid paying the taxes which were applied to fish oil, on the
grounds that whales aren't fish. The court ruled that for the purposes of
taxation, they were.

[1] [http://nycourts.gov/history/legal-history-new-york/legal-
his...](http://nycourts.gov/history/legal-history-new-york/legal-history-
eras-02/history-new-york-legal-eras-maurice-judd.html)

~~~
Bjartr
Similar to how tomatoes are legally vegetables so that tariffs would apply to
their import.

wikipedia.org/wiki/Nix_v._Hedden

~~~
cr0sh
I wonder if pumpkins are considered vegetables or fruits? Squash? Eggplant?

Peanuts considered nuts or legumes for "taxation"?

Etc.

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wiseleo
Bizarre. Phones and tablets are definitely computers. We can attach a keyboard
and a screen to it. We can print from it. We can attach mice. They can run
arbitrary software, subject to platform restrictions.

~~~
badumtss
I can attach a keyboard to my toaster as well, it doesn't necessarily mean
that it is a computer.

"A computer is a machine that can be instructed to carry out sequences of
arithmetic or logical operations automatically via computer programming."
[https://en.wikipedia.org/wiki/Computer](https://en.wikipedia.org/wiki/Computer)

~~~
mirekrusin
With this definition a cable can be computer; or a lightbulb.

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lucideer
Lol. Seems the only appropriate response here.

It seems obvious that the judge's claim is misguided, but given the nature of
the law being referenced by the warrant, its hardly a terrible injustice.

I find this quote from the judge interesting as it almost seems like a
commentary on the unneccesary absract, opaque language of legal documents in
general:

> _the very ubiquity of mobile phones suggests that, if the parliament had
> intended that they should be encompassed by the term ‘computer’ it would
> have been obvious to say so._

------
klingonopera
I'm surprised that the AFP has trouble breaking into a Samsung/Android phone.
I know little of the smartphone environment, let alone their security
precautions, but I was always under the impression, that there's software
readily available on the black market/dark web that turns breaking into a
phone into something of a point-and-click adventure?

...or is this actually about making that information "legal" in the eyes of
the court?

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scottndecker
I'd like to hear the judge's thoughts on phablets and tablets. Is it the
physical keyboard that makes it a computer?

