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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 ambigu

by 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.
  - rahimnathwani 7y ago
    "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.
    - DougBTX 7y ago
      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?
      - rickycook 7y ago
        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...?
      - klodolph 7y ago
        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.
      - rahimnathwani 7y ago
        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'?
officemonkey 7y ago
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.
gnode 7y ago
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.

by phire 7y ago

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.
- rahimnathwani 7y ago
  "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.
  - DougBTX 7y ago
    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?
    - rickycook 7y ago
      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...?
    - klodolph 7y ago
      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.
    - rahimnathwani 7y ago
      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'?

officemonkey 7y ago

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.

gnode 7y ago

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.