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.
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.
Australia (like many other countries) has codified in law  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.
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.
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"
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:
B) In the range 4" - 7"
Then I would agree that the definition of 'computer' includes smartphones. If it includes smartphones, it might also include featurephones.
> 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?
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.
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'?
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?
The judge could argue that the intent of the law was to avoid including smartphones, because that is clearly what they did.
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.
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
>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.
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.
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.
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...
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?
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.
Peanuts considered nuts or legumes for "taxation"?
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.
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".
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").
"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
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.
...or is this actually about making that information "legal" in the eyes of the court?
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.
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, but its mere existence shows that you don't own your phone.
 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.
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. :)
I'm pretty sure they're illegal. Or were, back when people didn't have confused notions about what constitutes 'ownership'.