AFP granted warrant to unlock smartphone but decision overturned on grounds device not covered by Crimes Act

This article is more than 1 year old

This article is more than 1 year old

Australian federal police are fighting a federal court ruling that a smartphone is not considered a computer, making a warrant it was using to force a suspect to unlock a phone invalid.

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.

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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.

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“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.”

He also overturned the decision arguing that the order was not specific enough to what the AFP required the man to do – provide a password or pin or a fingerprint, or to decrypt any data.

The AFP commissioner argued that the order was written requiring the man to provide “particular information or assistance” in order to allow flexibility in what they required him to do without needing to get another warrant.

In the appeal filed earlier this month, obtained by Guardian Australia, the AFP argued that level of specificity was not required under the law, and White erred in stating that the phone was not a computer because a smartphone “performs the same functions and mathematical computations as a computer and is designed to contain data for use by a computer”.

No court date has yet been set for the appeal.

The Australian federal police declined to comment to Guardian Australia on the broader implications of the decision, stating in was inappropriate to comment while an appeal was under way.

In his judgment, White noted that much of 3LA in the Crimes Act had been amended as part of the Telecommunications (Assistance and Access) Act passed in December 2018, and the case in question is about the law before it was amended.

The amendments to the Crimes Act, however, did not define a computer or data storage device beyond what was already in the law. The changes to 3LA just increased the penalty for failure to comply with such orders from two years to a maximum of 10 years in jail.