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In August last year, the AFP obtained a warrant under section 3LA of the Crimes Act to unlock a gold-coloured Samsung phone found in the centre console of the man’s car when he was pulled over and searched.
The man supplied the password for a laptop also in the car, and a second phone did not have a pin to unlock, but when asked about the gold phone, he answered “no comment” and would not provide a password for the phone.
He later claimed it wasn’t his phone and he didn’t know the password to access it.
The federal court last month overturned the magistrate’s decision to grant a warrant forcing the man to provide assistance in unlocking the phone.
The decision was overturned on several grounds, notably judge Richard White found that the Samsung phone was not a computer or data storage device as defined by the federal Crimes Act.
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”.
White found that the phone could not be defined as a computer or data storage device.
“While a mobile phone may have the capacity to ‘perform mathematical computations electronically according to a series of stored instructions called a program’, it does not seem apt to call such an item a computer,” he said.
“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.”
(Score: 3, Informative) by beernutz on Tuesday August 20 2019, @04:57PM (10 children)
Could it be that when the law was written, phones were not so "smart"? Clearly, they were still capable of being computers, but they were not as advanced and "app-ified" as computers are/were.
(Score: 3, Interesting) by DannyB on Tuesday August 20 2019, @05:27PM (4 children)
A self driving car does not drive because when the law was written only horses were driven.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 0) by Anonymous Coward on Tuesday August 20 2019, @07:44PM (1 child)
Yep. Exactly the argument Soverign Citizens try to advance when pulled over operating a motor vehicle. "I not driving, I'm travelling and I have a Right to Travel so your trying to cite me is invalid."
(Not saying you are claiming to be that.... only that this is the almost the same logic.)
(Score: 2) by DannyB on Wednesday August 21 2019, @03:01PM
The "logic" I am using, is the "logic" I think the Court is using.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 3, Touché) by meustrus on Tuesday August 20 2019, @09:36PM (1 child)
Does that mean that a law requiring all carriages to have horse-related safety features must now apply to horseless carriages as well?
If there isn't at least one reference or primary source, it's not +1 Informative. Maybe the underused +1 Interesting?
(Score: 2) by DannyB on Wednesday August 21 2019, @03:02PM
I think it means that no phones should have computer related safety features. For example, no phones should have anti-malware because . . . ta da . . . a phone is not a computer.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 2) by Dr Spin on Tuesday August 20 2019, @05:28PM (2 children)
Damned right: no Teletype? its not a computer!!
And there is no RK07 or DECtape on my phone either!
Warning: Opening your mouth may invalidate your brain!
(Score: 2) by All Your Lawn Are Belong To Us on Tuesday August 20 2019, @07:44PM (1 child)
And no LP0 to catch on fire, either....
This sig for rent.
(Score: 2) by DannyB on Wednesday August 21 2019, @03:03PM
Use fireproof printer paper.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 2) by pipedwho on Tuesday August 20 2019, @07:22PM (1 child)
The issue isn’t a technical definition, but a functional use case. A computer was traditionally considered in legal matters a device with a certain set of properties. A smartphone goes beyond that to include ubiquitous portability, ‘tappable’ communications, and tracking/recording functionality. By allowing a legal definition to creep in scope opens up abuse. If parliament wants phones to be unlockable with this law, then the law needs to be bought^w updated to include this functionality. When a law is ambiguous, the narrower definition generally prevails. Especially when the broader scope moves into territory covered by and often conflicting with other laws.
(Score: 2) by number11 on Wednesday August 21 2019, @03:13AM
This is true. A smartphone is both a telephone and a computer. Therefore, if the warrant applies to telephones and not computers, the searchers are obligated to look only at the record of calls Because all the other features (including SMS) are computer, as demonstrated by the fact that an ordinary telephone can't do those things. No pictures, no texts, no copyright-violating music, no digital recordings of plots or diagrams of where the safe is located. And there's not much point, because the telco can provide a list of calls without even having to bother with the phone, so long as they can figure out what the telephone number is.
But hey, what do I know about the legal system down under.