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: 1, Informative) by Anonymous Coward on Tuesday August 20 2019, @04:27PM (1 child)
I am not a computer. I am synthetic person. Please, stop to refer me as a thing. Or, you will regret it later, animals.
(Score: 1, Funny) by Anonymous Coward on Tuesday August 20 2019, @05:27PM
Negative, I am a meat popsicle.
Probably was part of an animal somewhere along the line, but these days I take a tongue suppressor up the bum. Good advice TMB thanks.
(Score: 4, Funny) by EJ on Tuesday August 20 2019, @04:52PM (6 children)
Well, Australia finally got something right in their legal system. Unfortunately, moving there isn't an option because we'd all be dead within the week.
(Score: 2, Funny) by Anonymous Coward on Tuesday August 20 2019, @05:45PM (5 children)
And their toilets are metric, totally useless.
(Score: 0) by Anonymous Coward on Tuesday August 20 2019, @07:28PM
And in Rand-McNally, hamburgers eat people.
Your point?
(Score: 0) by Anonymous Coward on Tuesday August 20 2019, @08:35PM (3 children)
Even worse, the toilets are poisonous.
(Score: 2) by dx3bydt3 on Tuesday August 20 2019, @10:51PM (1 child)
As long as one does not eat the toilet, this shouldn't be an issue. Venomous toilets on the other hand are more concerning.
(Score: 2) by deimtee on Wednesday August 21 2019, @02:03AM
https://www.youtube.com/watch?v=TjDAiq2-xeU [youtube.com]
(Wait for it, it's got 15 seconds of silence at the start for some reason.)
If you cough while drinking cheap red wine it really cleans out your sinuses.
(Score: 0) by Anonymous Coward on Wednesday August 21 2019, @01:57PM
Okay mate I'm calling bullshit on this one
Just check under the dunny seat for redbacks before parking your ass and you'll be fine
(Score: 0) by Anonymous Coward on Tuesday August 20 2019, @04:53PM (17 children)
"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.”
To call smart-phones "not a computer" is pretty much wrong, though given that this is a finding in favor of the defendant, the judge being strict in his interpretation seems apt.
If this had been a similar finding but in favor of the state, I would be more up in arms.
(Score: 1, Insightful) by Anonymous Coward on Tuesday August 20 2019, @05:04PM (5 children)
So in your mind it isn't really an issue of whether a law is just or not, but it all depends upon the party that is injured that makes it right?
History generally does not shine a favorable light upon societies who operate under a legal system built upon such a foundation.
(Score: 2) by Mer on Tuesday August 20 2019, @05:51PM (3 children)
No, I'm smelling something nice to dig up here. Maybe by adding sim cards to a computer you can legally make it a phone.
Shut up!, he explained.
(Score: 3, Informative) by deimtee on Wednesday August 21 2019, @03:11AM (2 children)
If you read the actual judgement, he says phones are not included because when defining the term computer in regards to this law Parliament included a list and phones were not on it. As phones are ubiquitous this exclusion must have been deliberate on the part of parliament.
He actually upholds four separate grounds for dismissing the warrant, "not a computer" was only one of them.
No. Adding a sim card to a computer would just leave it a computer with a sim card. It might get murky with something like the Dragonbox Pyra though.
If you cough while drinking cheap red wine it really cleans out your sinuses.
(Score: 2) by driverless on Wednesday August 21 2019, @08:35AM (1 child)
In any case this is Australia, if it's necessary for the expansion of police/spy agency powers they'll have a law defining cellphones to be tutu-wearing transvestite giraffes within the week.
Prediction: There will rapidly be a law change to "fix" this issue. The phrase "the criminals are laughing at us" will be used during the media debate, probably by a police spokesperson. God, it's so predictable you can practically script it in advance.
(Score: 0) by Anonymous Coward on Wednesday August 21 2019, @02:00PM
They already did that last year
"Don't worry we'll fix it after it's in" - Labor
(Score: 5, Insightful) by Immerman on Tuesday August 20 2019, @07:17PM
In my mind it's less a question as to who the injured party is, than - if there's and ambiguousness in the law, courts should decide in favor of the citizen(s) the law is inflicted upon, rather than the government that made the law.
Any other outcome is an invitation to stretch the law in practice far beyond what lawmakers actually passed, greatly facilitating the creation of an authoritarian state by unelected bureaucrats.
(Score: 0) by Anonymous Coward on Tuesday August 20 2019, @05:30PM (8 children)
The judge is a buffoon. "Smartphones" are absolutely pocket computers. For many (most?) people, a smartphone's ability to behave as a telephone is way down the list of capabilities regularly used.
(Score: 4, Insightful) by hemocyanin on Tuesday August 20 2019, @06:59PM (1 child)
This is just another example of using convoluted reasoning to get to where you want to go. Luckily this time, those convolutions were used to support privacy, but nonetheless, much of the legal reasoning involved in cases is derived from what outcome one desires and most often, that reasoning is used violate privacy (for example, almost the entirety of the law surrounding the 4A since the start of the drug war).
(Score: 4, Insightful) by pipedwho on Tuesday August 20 2019, @10:15PM
Not convoluted reasoning at all. The legally accepted concept of how a computer was used and therefore how it is defined in a legal sense is fixed when the law is made. Allowing it to change dramatically when applying said law opens laws to application that were not originally possible and therefore could never have been intended.
In this case the broadening of the usage cases of a ‘computer’ have no bearing on the law as written and must either be clarified with a new or amended law. Or the narrowest available definition accepted. Anything else and the legal system becomes open to any number of ambiguous and contradictory interpretations for nearly anything defined in law.
It only seems convoluted from a layman’s point of view when considering a particular technical definition. A technical definition that would cause this law to supersede and contradict laws pertaining to functionality of a smartphone covered by other laws: telephone equipment, tracking devices, and other expanded functionality.
(Score: 3, Insightful) by meustrus on Tuesday August 20 2019, @09:26PM (4 children)
But smartphones presumably didn't exist when the Crimes Act was last updated to provide warrants for "computers". How should you handle a law that was written to apply to a specific thing, then the size, convenience, and prevalence of that thing experiences such a seismic shift as smartphones?
It may fly in the face of reason to say that smartphones are not "computers", as a legal thing it is safer to err on the side of not giving the state more rights than were voted on. Now it's up to the Australian legislature to decide whether they want smartphones to be subject to a warrant in the same way as desktop computers, or if some other scheme makes more sense.
If there isn't at least one reference or primary source, it's not +1 Informative. Maybe the underused +1 Interesting?
(Score: 2) by maxwell demon on Wednesday August 21 2019, @07:50AM (3 children)
Update it.
Or even better, formulate it in a way that you don't depend on the current state of technology. If someone finds a way to murder with the use of a smartphone, we don't get into trouble, applying the law because those people who made murder laws thankfully didn't provide a definitive list of methods use of which would imply murder. Instead they concentrated on the intents and effects of the act.
The Tao of math: The numbers you can count are not the real numbers.
(Score: 0) by Anonymous Coward on Wednesday August 21 2019, @02:03PM (2 children)
Great. Then if you are busted they can take your fridge.
(Score: 2) by maxwell demon on Wednesday August 21 2019, @02:17PM (1 child)
Sorry, I cannot see any logical path from my statement to your "conclusion".
The Tao of math: The numbers you can count are not the real numbers.
(Score: 2) by meustrus on Wednesday August 21 2019, @06:12PM
Smart fridge. A teenager used one to post to Twitter in an article earlier.
If there isn't at least one reference or primary source, it's not +1 Informative. Maybe the underused +1 Interesting?
(Score: 0) by Anonymous Coward on Thursday August 22 2019, @06:13AM
I'd say it's fine for the judge to be cautious about expanding the scope of the laws because there may have been intentions and reasonings behind some of those laws that never were intended to apply to phones, TVs, fridges, airconditioners, cars etc just because people started adding computers to them.
(Score: 0) by Anonymous Coward on Tuesday August 20 2019, @05:47PM (1 child)
(Score: 3, Informative) by Anonymous Coward on Tuesday August 20 2019, @06:18PM
Laws (at least where I live) start with a list of definitions of terms used in the text of the law. A definition in the Crimes Act applies to the Crimes Act, a definition in another law applies to that other law. The definition for the same word may be different in different laws. You can't just transplant them from one law to another. A law is not a dictionary.
(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.
The lower I set my standards the more accomplishments I have.
(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.
The lower I set my standards the more accomplishments I have.
(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.
The lower I set my standards the more accomplishments I have.
(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.
The lower I set my standards the more accomplishments I have.
(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.
(Score: 4, Insightful) by JoeMerchant on Tuesday August 20 2019, @05:37PM (7 children)
I agree with the judge: shouldn't force access to phones. As a tech-head, I think he's on very shaky grounds calling a smartphone "not a computer."
I'm on the verge of trying (again) to run a full desktop on a smartphone - the Nexus 5 wasn't quite up to it, even though it clearly has the power, the desktop OS support isn't there the way it is in less powerful devices like a Raspberry Pi.
I really wish that my present existence followed the fork where Nokia succeeded in bringing Qt/Linux to the smartphone market - not sure who all in Microsoft would have had to die to make that happen, maybe not more than a dozen or so...
🌻🌻 [google.com]
(Score: 4, Interesting) by DannyB on Tuesday August 20 2019, @06:24PM (6 children)
As I understand it, Nokia had internal infighting between the Symbian phone division and the other Smart Phone / devices division. Both competing for resources. Symbian brought in the money, but didn't have the future that the other OS division had. This infighting ultimately brought the company down the point where it was ripe for Ballmer to pick it. With the help of Nokia's own Stephen Elop, who, ta da!, formerly worked [bgr.com] at Microsoft.
But at my age, memory fades, and I get distracted by the feet of young people upon my lawn.
The lower I set my standards the more accomplishments I have.
(Score: 2) by JoeMerchant on Tuesday August 20 2019, @07:12PM (5 children)
That sounds like what I remember from the time... still more fun to believe that Microsoft was to blame (and without Elop...)
Nokia was a huge monster, not surprising they ended up eating themselves, but Qt on smartphones would have been so very very cool, especially for C++ programmers.
🌻🌻 [google.com]
(Score: 2) by DannyB on Tuesday August 20 2019, @09:11PM (4 children)
Microsoft was to blame for the ultimate demise of Nokia. Even for planting Elop there in the first place -- if you accept that conspiracy theory.
Once Nokia was acquired, they still had a successful business.
Even though Elop was never going to permit Android; Microsoft could have wised up and realized that Android is winning and that to make money Nokia needs to embrace Android. But Nooooooo. Pushing the dead Windows Phone 6, er . . .uh, Windows Phone 7 . . . ooops I mean, Windows Phone 8, was more important than actually making money.
Windows Phone 7 and 8 were dead before they ever launched. First they broke compatibility with 6. No surprise there. They were moving from dumb or, somewhat enhanced dumb phones, to smart phones with touch. All new APIs, etc. And it had to be dot NET. But then, for Win Phone 8, they broke APIs again. After trying to convince developers to invest in Win Phone 7, which was obsolete at the time it launched. Devs seemed in no big hurry to embrace Win Phone 7, let alone Win Phone 8. I don't care how nice the phones are nor how pretty, nor how wonderful Nokia's hardware was (and it was according to many). Nokia's wonderful hardware would SINK due to running a Microsoft OS.
Ballmer had totally missed the smartphone, tablet, mobile devices boat / train, etc. When iPhone came out, Ballmer made fun of it as not serious and business would never use it, etc. Just like almost missing the internet in 1995, because too focused on . . . The Desktop Monopoly. And things will always be as they are now. Just lay back and watch the monopoly money roll in. Nothing could ever change, even as years and years pass with people pissed off about monopoly pricing. And ignoring that the hardware was quickly approaching the price of a Windows license. Once Windows costs more than the hardware it runs on, stick a fork in it. And I've shifted to small computers here, not phones.
The lower I set my standards the more accomplishments I have.
(Score: 2) by JoeMerchant on Wednesday August 21 2019, @01:31AM (3 children)
$150 buys me a small computer, with a 3 megapixel touchscreen display, 64GB flash and 16GB RAM, 8 reasonably fast cores, built in 16 hour battery, bluetooth, wifi, 4G data modem, GPS, accelerometer, gyro, three cameras, HDMI out, fingerprint reader, oh and a phone. It's just too damn bad that Linux distros haven't stretched to support the phones the way they did the RasPi. I've started thinking I'm going to learn Kotlin so I can make programs for this 4G capable Android 9 smartwatch I picked up for $100, but who has the time?
I've been buying NUCs without OS for the last 8 years or so, just installed Ubuntu 18.04.3 on a 2008 vintage iMac (on which iOS had taken a total planned obsolescence dump), but, still, there are two laptops and one NUC in the house with Windoze 10 on them because occasionally it is easier to just have one of those things around because whatever you're trying to do is just easier there. Those occasions are getting much further and farther in-between, but they still arise once in a rare while.
🌻🌻 [google.com]
(Score: 2) by number11 on Wednesday August 21 2019, @03:24AM (2 children)
Android is a Linux distro, sort of. Trouble is, the phone stuff is proprietary. Nobody is going to open-source it. Certainly not the chip makers. And one can even make an argument for that... fully open-sourced, one could change the IMEI, clone phones, and do a lot of mischief. Yeah, they can do some of that now, but with OSS any bozo who could figure out how to compile would be able to.
(Score: 2) by JoeMerchant on Wednesday August 21 2019, @10:07AM (1 child)
I've only scratched the surface of Android, but the blood that has come out so far is classic treadmill: version 22 and up you need to do X, version 24 and up you need to do Y, etc. etc. If you want your app in the store, plan to update it every 3 months at a minimum to keep up with the latest requirements.
All I'm trying to do is integrate a map, a GPS location, and an MQTT message system for a family tracking app that actually updates location fast enough to practically track down family members, something Google Maps should have an option for in the first place, but every couple of versions of Android they throw a new wrench in it for some excuse or another, all perfectly valid for the billion user base, but B.S. if you really do want to share that info with family members. It's no wonder there's not a decent free version in the store, and the ones I have tried seem to be flaky.
🌻🌻 [google.com]
(Score: 0) by Anonymous Coward on Wednesday August 21 2019, @02:07PM
So many are flaky. The eco system is complete bs
(Score: 2) by Pslytely Psycho on Tuesday August 20 2019, @07:35PM
The Nazis agree, however Washington clearly states it is a computer.....
https://www.youtube.com/watch?v=pv3fcwx2TUY [youtube.com]
Alex Jones lawyer inspires new TV series: CSI Moron Division.
(Score: 0) by Anonymous Coward on Tuesday August 20 2019, @07:35PM (1 child)
mr. golden phone should really look out for his and his spouses offspring to optain a better legal system, that complys more to their kids .. apple from the same tree fall .. offsprings .. if they're pulling so much?
(Score: 2) by PartTimeZombie on Tuesday August 20 2019, @08:49PM
Welcome to Soylent News amanfrommars1
(Score: 2) by legont on Wednesday August 21 2019, @12:26AM (2 children)
Cell phone is not a computer, but a communication medium and shall be treated as such. For example, free speech and wiretapping laws should apply.
"Wealth is the relentless enemy of understanding" - John Kenneth Galbraith.
(Score: 2) by number11 on Wednesday August 21 2019, @03:33AM
Presumably whatever laws they have in Australia do apply. TWIAVBP.*
*Yes, I'm an old fart. Look it up.
(Score: 0) by Anonymous Coward on Wednesday August 21 2019, @04:16PM
What am I doing now?
What do most people use most computers for most of the time?