7 ms·

Judge claims mobile phone is not a computer

67 points by injidup 7y ago

lucideer 7y ago
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.
wiseleo 7y ago
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 7y ago
  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
  - touristtam 7y ago
    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.
  - mirekrusin 7y ago
    With this definition a cable can be computer; or a lightbulb.
  - pests 7y ago
    Does the law apply to the old human computers back in the day too.
- dagw 7y ago
  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.
  - jobigoud 7y ago
    > 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.
    - dagw 7y ago
      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".
  - env123 7y ago
    Well, he's a bad judge then. He should be able to adapt to the situation rather than follow the law literally
    - dagw 7y ago
      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.
Yizahi 7y ago
“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.
- jobigoud 7y ago
  Yes as you may know in the fifties "computer" was the job description for humans doing the calculations at NASA. cf. Hidden Figures.
- cr0sh 7y ago
  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 7y ago
    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).
hiisukun 7y ago
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 7y ago
  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.
random_upvoter 7y ago
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".
- dagurp 7y ago
  Isn't that too specific? That wouldn't cover tablets, phablets or future computer-like devices.
  - rfrey 7y ago
    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.
    - numbsafari 7y ago
      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?
      - rfrey 7y ago
        "Less law" in the sense of fewer areas of life covered, not the number of words written.
- stuntkite 7y ago
phire 7y ago
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 7y ago
  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/bills/r6195_aspassed/toc_pdf/18204b01.pdf;fileType=application/pdf 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.
  - jay_kyburz 7y ago
    Perhaps they chose not to because the current definition of computer clearly covers phones. Which is why this is making headlines.
willbw 7y ago
The full judgment if anyone is interested in the particulars. http://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2019/1100.html http://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/...
otabdeveloper4 7y ago
He's pretty much right. Your phone is owned and operated by Google or Apple, not by you. It's a "computer" in the narrow sense that it's device with a CPU, but not a "personal computer".
- Insanity 7y ago
  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.
  - otabdeveloper4 7y ago
    > 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.
    - Insanity 7y ago
      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. :)
      - otabdeveloper4 7y ago
        > 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'.
deleted 7y ago
[deleted]
huffmsa 7y ago
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 7y ago
  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_Departments/Parliamentary_Library/pubs/BriefingBook44p/Surveillance 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.
scottndecker 7y ago
I'd like to hear the judge's thoughts on phablets and tablets. Is it the physical keyboard that makes it a computer?
klingonopera 7y ago
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?
jhbadger 7y ago
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-history-eras-02/history-new-york-legal-eras-maurice-judd.html http://nycourts.gov/history/legal-history-new-york/legal-his...
- Bjartr 7y ago
  Similar to how tomatoes are legally vegetables so that tariffs would apply to their import. wikipedia.org/wiki/Nix_v._Hedden
  - cr0sh 7y ago
    I wonder if pumpkins are considered vegetables or fruits? Squash? Eggplant? Peanuts considered nuts or legumes for "taxation"? Etc.

67 points by injidup 7y ago

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.

wiseleo 7y ago

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 7y ago
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
- touristtam 7y ago
  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.
- mirekrusin 7y ago
  With this definition a cable can be computer; or a lightbulb.
- pests 7y ago
  Does the law apply to the old human computers back in the day too.
dagw 7y ago
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.
- jobigoud 7y ago
  > 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.
  - dagw 7y ago
    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".
- env123 7y ago
  Well, he's a bad judge then. He should be able to adapt to the situation rather than follow the law literally
  - dagw 7y ago
    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.

Yizahi 7y ago

“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.

jobigoud 7y ago
Yes as you may know in the fifties "computer" was the job description for humans doing the calculations at NASA. cf. Hidden Figures.
cr0sh 7y ago
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 7y ago
  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).

hiisukun 7y ago

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 7y ago
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.

random_upvoter 7y ago

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".

dagurp 7y ago
Isn't that too specific? That wouldn't cover tablets, phablets or future computer-like devices.
- rfrey 7y ago
  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.
  - numbsafari 7y ago
    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?
    - rfrey 7y ago
      "Less law" in the sense of fewer areas of life covered, not the number of words written.
stuntkite 7y ago

phire 7y ago

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 7y ago
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/bills/r6195_aspassed/toc_pdf/18204b01.pdf;fileType=application/pdf 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.
- jay_kyburz 7y ago
  Perhaps they chose not to because the current definition of computer clearly covers phones. Which is why this is making headlines.

willbw 7y ago

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

otabdeveloper4 7y ago

He's pretty much right. Your phone is owned and operated by Google or Apple, not by you. It's a "computer" in the narrow sense that it's device with a CPU, but not a "personal computer".

Insanity 7y ago
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.
- otabdeveloper4 7y ago
  > 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.
  - Insanity 7y ago
    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. :)
    - otabdeveloper4 7y ago
      > 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'.

deleted 7y ago

[deleted]

huffmsa 7y ago

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 7y ago
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_Departments/Parliamentary_Library/pubs/BriefingBook44p/Surveillance 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.

scottndecker 7y ago

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

klingonopera 7y ago

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?

jhbadger 7y ago

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-history-eras-02/history-new-york-legal-eras-maurice-judd.html http://nycourts.gov/history/legal-history-new-york/legal-his...

Bjartr 7y ago
Similar to how tomatoes are legally vegetables so that tariffs would apply to their import. wikipedia.org/wiki/Nix_v._Hedden
- cr0sh 7y ago
  I wonder if pumpkins are considered vegetables or fruits? Squash? Eggplant? Peanuts considered nuts or legumes for "taxation"? Etc.