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Comment by phire | Hacker News Reader

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

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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/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.

Perhaps they chose not to because the current definition of computer clearly covers phones. Which is why this is making headlines.

"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.

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?

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...?

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.

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'?

I'd argue "yes" to all those examples. Books, especially, have always been "data storage devices"; I don't see why a portion of a book couldn't be by reduction.

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?

my reading of that snippet of text would seem to be that the law was referencing external hard drives, USB drives, etc.

I haven't plugged my phone into a computer in years (apart from very occasionally just to charge it, when away from a wall wart).

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.

Apple have a whole advertising campaign based around the idea that an iPad is not a computer

https://www.macrumors.com/2017/11/16/apple-shares-new-ipad-p...

Where does dedicated touchscreen VoIP handset fall under this?

> when the original law was written (in 1914?)

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"

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.

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.

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