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Judge claims mobile phone is not a computer (theguardian.com)
67 points by injidup 28 days ago | hide | past | web | favorite | 58 comments

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".

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.

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.

Setting a precedent that a smart phone is not a computer seems like a bad idea. Surely there are other laws that smart phone owners (and makers) would want to apply to both smart phones and more traditional computers.

This sort of thing (distorting the meaning of words in law to achieve a "fair" outcome) is that not uncommon.

Long ago one of the triggers for an expansion of copyright law was someone doing a clever job skirting it, who came up against a judge who wanted to put a stop to whatever he was doing. The only problem was according to earlier precedents the person wasn't actually copying anything. (Sorry - I forget the exact facts - it was a long time ago.) Anyway, the judge then had an epiphany - when the content was being played / transmitted or whatever it was, the bits were beginning copied on the bus lines.

That got leapt on by the copyright owners to mean they could control any copy, no matter how transient - and so the distinction between making a copy and transmission disappeared. If you copied something you not only had to have the legal right to have copies on on the source and destination (which this guy did) - you have to have the legal right own the "copy" on the transmission method.

The judge got his conviction of course, but all computer programmers watching on recoiled in horror. Later came the DCMA, which was actually an improvement on that situation that decision created.

Isn't that too specific? That wouldn't cover tablets, phablets or future computer-like devices.

That's probably OK I think. Legislators probably have a particular device in mind, with particular functions and usage patterns, when they write a law.

Requiring a specific update to the law in order to encompass new devices - which probably have different features and usage patterns - is worth the inconvenience to lawmakers. Sometimes an "automatic extension" of a law to new-but-related devices is appropriate, but many times it will not be and I'd rather err on the side of less law.

Is it less law to require a specific law for every single illogical differentiation, or to have a general principle that can be applied in a logical and consistent fashion?

"Less law" in the sense of fewer areas of life covered, not the number of words written.

OT (wrt law): The phone hardware is a call computer, but even I would call them consumer devices rather than a computer. The closest convenient computation I can do on one might be Google sheets.

It bears mentioning that this same judicial philosophy is extolled by hotly-controversial and recent appointments to the US Supreme Court.

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

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...) 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.

> when the original law was written (in 1914?)

Yeah, no law written in 1914 will even mention computers.

The original crimes act was created in 1914, but in the westminster style systems, acts are continuously updated by new acts. A large central act like the crimes act will get updated multiple times a year.

It looks like that section of the crimes act was inserted by Cybercrime Act 2001. (just a few weeks after 9/11, I wonder if it was rushed through)

>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.

That is the school of thought that created this law. Well, not absolutely everything, but everything that they have a valid warrant for.

It's the same school of thought that makes destroying evidence a crime, and it wasn't really an issue before the concept of unbreakable encryption came along.

I'm on the fence regarding that school of thought, but it seems that the judge in this case doesn't agree with it.

>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.

Put it this way, computers of 2001 were used for storing a bunch of personal information, not just text, but audio and pictures too. The way we used computers in 2001 is almost identical to the way we use smartphones now, except for the fact that phones are portable.

I would say the only reason why they haven't provided a definition of a "computer" in the past 18 years, or amended the law to explicitly mention smartphones, is because they thought it was obvious that smartphones were already included in the definition of "computer"

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

"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.

Apple have a whole advertising campaign based around the idea that an iPad is not a computer


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?

I haven't plugged my phone into a computer in years (apart from very occasionally just to charge it, when away from a wall wart).

Do people commonly still use their phones to hold or transfer files for use on a computer? I figured that use case must be well and truly dead by now.

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'?

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?

my reading of that snippet of text would seem to be that the law was referencing external hard drives, USB drives, etc.

I think this kind of comments illustrate a difference in thinking between engineering and law. Engineers need specs, but the law is not a spec in the sense that engineers use it.

because the data on the phone is containing or designed to contain data for use by a phone because a phone isn’t a computer...?

Where does dedicated touchscreen VoIP handset fall under this?

Lawmakers have had plenty of time to clarify their intent. The reason they haven't added smartphones is it is politically difficult to add them to the law. Because to the average Australian, that seems like overreach. People's perception of their phones as more personal/private than most devices.

The judge could argue that the intent of the law was to avoid including smartphones, because that is clearly what they did.

The judge is interpreting a "computer" to mean what most reasonable people would consider a computer to be, rather than use technicality to expand the definition beyond colloquial understanding, in the interest of only one of two parties he must show impartiality toward.

Why not say that everything marked with text or symbols is a "document"? Why not say everything with a surface is a "weapon"? The interpretation of the text of the law should meet the understanding of the public who are expected to obey it.

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

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...

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.

“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.

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...

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).

Yes as you may know in the fifties "computer" was the job description for humans doing the calculations at NASA. cf. Hidden Figures.

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?

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.

The full judgment if anyone is interested in the particulars. http://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/...

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...

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


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

Peanuts considered nuts or legumes for "taxation"?


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.

The argument from the judge seems to be that if the lawmakers had meant the law to cover both 'traditional' computers and smartphones, they would have written "computers and smartphones" in the text of the law. By excluding the word "phone" from the text of the law and only talking about "computers" the judge interpreted that as the intention wasn't to include smartphones in the law. Basically he's telling the law makers that if they want the law to cover smartphones they should make it clear in the text that that is their intention.

> if the lawmakers had meant the law to cover both 'traditional' computers and smartphones, they would have written "computers and smartphones"

That seems a fairly weak argument. Why can't they write a law that applies to all computers by default? including future form factors like wearables and glasses and anything not invented yet. This logic implies that the law has to be amended every time we find a new computer shape.

Why can't they write a law that applies to all computers by default?

They obviously can, but according to the judge, they didn't. The judge basically wants them to go back and clarify what they mean when they wrote "computer".

Well, he's a bad judge then. He should be able to adapt to the situation rather than follow the law literally

It's an interesting philosophical question if nothing else. If a law is unclear, to what extent should a judge be deciding what the law “should" say vs. going with what's on the page and telling the lawmakers that they need to clarify their intentions.

I guess it's ultimately what - if anything - the law in question (or whatever it may reference) defines a "computer" as (legally).

Maybe the definition on the books says a computer is a device with a screen and a keyboard, and maybe other input/output devices like a printer or a mouse. Maybe it says something about typing on a computer, or sitting down at a computer, or such? It probably doesn't do anything like reference what the technical definition of a computer is (and funnily enough, if it did - even that would likely be wrong, and exclude things like analog computers, relay machines, mechanical differential analyzers, and a whole host of other things which historically and otherwise are "computers").

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

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

You can definitely send instructions to a lot of modern devices that would have not integrated such a powerful chipset decade ago: not only the toaster you are referring to, but a fridge, a wash machine, a tv, a light bulb, a door bell. The list goes on and on, as long as a new product is brought to market that integrate a processor and brand itself as "smart" there is a good change a computer has been blended in what otherwise would be a dumb device with a single purpose.

Does the law apply to the old human computers back in the day too.

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.

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?

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


Are they owned more by google or apple than say Windows and well.. MacOS?

Maybe because they are more 'closed' in the apps you can install, but you can download and store the same files on them as a computer.

What the average user needs is a browser, and they probably do more or less the same with a phone as a computer.

> Are they owned more by google or apple than say Windows and well.. MacOS?

Well, yes. There's a legal definition that explains what exactly it means to "own" something that I don't care to delve into right now, but in a nutshell, it involves things like being able to control, use and delegate the object in question in arbitrary ways.

Google/Apple remote-control your phone. They don't exercise that capability, mostly[1], but its mere existence shows that you don't own your phone.

[1] Apple went and deleted a bunch of apps I 'owned' and paid for. There is no way to get them back now. People think this is somehow the new normal, but I think this is slightly insane.

It is but windows has similar backdoors and just does not use them.

I am not arguing against you by the way, I completely agree with you in fact. But I don't think it is worse than the propriatery operating systems on our computers. :)

> It is but windows has similar backdoors and just does not use them.

I'm pretty sure they're illegal. Or were, back when people didn't have confused notions about what constitutes 'ownership'.

I mean that windows can push any update, closed source, so you can't verify what it does. That is an accepted 'backdoor'

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