Crowd Sources Legalling

There seem to be numerous Cat protagonists of the world’s second oldest profession; both of the city and bush variety.  So here is TAFKAS’ question.

In an interview regarding the AFP search of her home, News journalist Annika Smethurst disclosed that the warrant empowering the AFP search of her home required her to not only hand over her mobile phone, but also the PIN to the phone.  She said that, on the advice of her lawyer (possibly a lawyer provided to her by her employer), she did hand over the PIN.

There seems to be a difference between not obstructing a search and assisting a search and providing the PIN to ones mobile phone seems to be assistance.  Not to mention a warrant requiring same.

TAFKAS is not familiar with the laws around these matters but can someone be compelled to provide the password to their phone or their computer?

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34 Responses to Crowd Sources Legalling

  1. pete m

    This was discussed a while back when feds changed warrant laws to include giving passwords.

    You would not need to do so under state laws for warrants.

  2. This was discussed a while back when feds changed warrant laws to include giving passwords.

    Wow. Talk about police state. And what is the penalty for not providing?

  3. Barry

    I think the lesson here is that if you want to play with the big boys, you had better understand the risks, and make provision for what might happen.

    E.g. an encryption layer not decrypted by the normal phone access PIN, along with some obfuscation to provide plausible deniability, and a privacy-oriented email (not Gmail). Some risk remains though, and you had better have a strong hide, if you are going to testify about the non-existance of information.

    It’s entirely foreseeable that you will get raided if you publish classified material. I should have thought that the news organisations already had a handle on that. Many big companies provide completely sanitized phones and laptops for travel to China, crossing the US border, for example.

  4. stackja

    I believe search warrants once only needed to specify a property, room, maybe filing cabinet. Now much the same information is on a mobile phone. Was the past any different?

  5. thefrollickingmole

    https://www.sydneycriminallawyers.com.au/blog/can-police-demand-the-password-to-my-phone-or-computer/

    That mechanism is contained in section 3LA of the Crimes Act 1914 (Cth) (“the Act”), which provides that “a constable may apply to a magistrate for an order to provide any information or assistance that is reasonable and necessary” to allow them to access data stored on “a computer or data storage device.”

    A “constable” is defined by section 3 of the Act as “a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory”.

    Police can apply to a magistrate for an “assistance order” requiring the owner or user of a computer or data storage device to provide such information they can establish a reasonable suspicion that the device holds or can enable access to evidential material relevant to a crime.

    The subject of the order is not required to be suspected of any crime. He or she merely needs to be the owner of the device that police reasonably suspect holds information relating to an offence.

    If the application is successful, the subject will be required to provide the password/s enabling police to gain access to the device/s, as well as any decryption information in order to make data accessible and intelligible to police.

    Failure to comply with an assistance order is a criminal offence. When the law was first enacted, the maximum penalty was 6 months imprisonment. However, authorities have since raised the maximum penalty to 2 years behind bars.

  6. stackja

    The Artist Formerly Known As Spartacus
    #3040680, posted on June 12, 2019 at 9:02 am
    This was discussed a while back when feds changed warrant laws to include giving passwords.

    Wow. Talk about police state. And what is the penalty for not providing?

    I believe it is called obstruction. Not know the penalty for not providing.

  7. feelthebern

    Malcolm Turnbull communicated to many via the wickr app.
    Did the AFP investigate that?
    If not, why not?

  8. Karabar

    One could be beset by an infection of the CRAFT virus (Can’t Remember a Fu**ing Thing).
    Is that what Arthur Sinodinos contracted when he didn’t know the Water Authority had made a rather large contribution to the organisation of which he was Treasurer? It would appear that it worked.

  9. Karabar

    This is the final link in the police state chain.
    “Until they became conscious they will never rebel, and until after they have rebelled they cannot become conscious.”—George Orwell

  10. In other words, one gets 2 years at her majesty’s accommodation for refusing to expose one’s bits (and bytes) to a copper?

    Case 1: Device contains an encrypted private message which is in breach of 18C. (Clang, clang, watch your fingers)

    Case 2: There is nothing criminal (only defence secrets and thermomix recipes) on the device. And the owner refuses access. The law would seem over the top.

    Case 3: The device contains details of a planned terrorist act. The owner refuses access and gets 2 years. The law is inadequate.

  11. Another Peter

    No big deal, requiring a PIN or password is no different to requiring doors or filing cabinets to be unlocked and they’ve been doing that forever.

  12. Andre Lewis

    If the police had a warrant for documents and they found they were in a filing cabinet with a padlock the owner would have to unlock it according to the relevant law. What is the difference between a PIN locking information on a phone?

  13. Bruce of Newcastle

    If you arrest a suspected drug dealer it seems likely their phone may be able to shed light on their activities.

    Journalists are worse than drug dealers, since at least with drug dealers you can usually trust them to sell you stuff which is worth the money.

    Fake Journalists are the real problem (Jonova, 12 Jun)

    One of the starkest differences, though, is in assigning blame for creating made-up news and information. Republicans are nearly three times as likely as Democrats to say journalists create a lot of it (58% vs. 20%).

    It’s pretty amazing that 58% of all conservative voters in the US regard the MSM as the enemy. Maybe the police now realize that journalists’ words are less trustworthy than even politicians.

  14. J.H.

    No different than a key or combination to a safe, you have to provide it or open it.

  15. Bruce of Newcastle

    I can’t wait for journalists to start squawking that they’re being “profiled” by plod, because they’re as likely to be perps as people of no identifiable features or ethnicity.

  16. Whalehunt fun

    Wow. Talk about police state. And what is the penalty for not providing?

    Hopefully 25 years without parole for a first offence. These criminals need to be given only once chance and one sentence. A second offence should carry the death penalty. At the least. There are of course a range of death penalties available. Some are much slower and much more painful. It is these I would wish to see applied to second offence.

  17. Rob MW

    So here is TAFKAS’ question.

    Don’t be despondent TAFKAS because you will note that nearly all, if not all previous Cat comments on the subject were devoted to the ABC’s involvement and not the free-press journalist. The News journalist should have kicked the executing AFP officers in the knackers, or whatever, and told them to fuck-off. No argument there. The answer should be absolutely no, but unfortunately obviously the law provides otherwise.

    However; the ABC is a different kettle of fish. They are first and foremost public servants subject to the public servant/government employees administrative and management laws which, subject to any legislated immunity, can and should face investigation and prosecution for breaches of the proper administration.

    It’s most likely that the government (taxpayers) provide and fund ABC journalists phones etc, so yes the public servants should and must hand over their phones and pins to their (our) phones. Your question does not make the distinction between public and private by focusing, not where previous comments landed, but on the privately employed journalist.

  18. Speedbox

    Some devices have a ‘distress’ PIN. If you dial in that number (instead of the real one) the device will automatically wipe all data. Unstoppable and non recoverable.

    Get with the program people – if you really have data you want to protect from prying eyes, then think and act accordingly.

  19. Kneel

    No different than a key or combination to a safe, you have to provide it or open it.

    True, but no-one is compelled to translate anything written which is available inside the safe, are they?
    Such as, oh, I don’t know, say a list of contacts, what drugs they buy and how much they owe me (assuming I am a drug dealer for the sake of the argument). That stuff I can write in whatever code I like, and I cannot be compelled to translate it – at least as far as I know (and it makes no sense to try and compel this anyway – if it’s my personal code, I can just lie, and who’d know?).

    What if the content they want to examine is in an email, and my email app is shut and requires a username/password before it lets the user see content – do I have to provide that too?

    What if I only access my email via a web app that requires me to log in every time and I never save the password in the browser – do I have to provide a username and password then too?

    The problem here is that, from what I can see, in the first case (app shut) the data is “on” the device, while in the second case (web access only), it is not (other than the ephemeral viewing cache, which I of course flush every time I close the browser)

    What if… the possibilities are endless.

    What of my right to be free of coercion regarding incriminating myself? Can I stand on such a right in this case, and if not, why not? How is this requirement any different than being compelled to answer a question, the answer to which may be incriminating and in a way not related to the original investigation.

  20. Bad Samaritan

    Funniest fake news I’ve seen in the past few days is the tale of Donald Trump believing that the Moon is part of Mars….The Guardian’ Headline….”Trump attacks NASA and claims the moon is ‘a part’ of Mars”

    In the article we got this….trump tweets….“For all of the money we are spending, NASA should NOT be talking about going to the Moon – We did that 50 years ago.”

    He added: “They should be focused on the much bigger things we are doing, including Mars (of which the Moon is a part), Defense and Science!” Trump’s declaration shocked many space enthusiasts, because the moon has not traditionally been regarded as part of Mars. Irrespective of whether the moon is part of Mars (it isn’t), Trump’s announcement was doubly surprising given his previous enthusiasm for a moon trip…..

    Then, after a bit more ho-ho-ing about how ignorant Trump is….we got ‘There is a possibility ​Trump’s tweet was a comment on NAAS’s broader plan to eventually travel to Mars from the moon.

    Now 75 years ago when Eisenhower or Roosevelt or Montgomery or Churchill announced that the landings at Normandy would be very tough; that Germany must be conquered and that Normandy was a part of it, did the Guardian tell us that these guys all thought Normandy was in Germany? Or has journalism become a total 100% clown world these day? Well?

    F’wits; one and all!

  21. max

    Western nations abandoned Gods limited and simple laws for humanist unlimited laws and regulations.

    All in the name of freedom and safety.

  22. NuThink

    How many so called journalists supported the right of Trump’s lawyer to privacy when his door was broken down and papers taken? And that happened even though lawyer client privilege presumably applied. Oh yes – that is different – wrong side of the fence.

  23. Chris M

    Couldn’t we outsource these police raids and investigations to China? It would be cheaper and I heard they are really good at it.

  24. NuThink

    If a journalist was in possession of the bank records of all journalists and waiting for an opportune time to release them, would they then support a raid on that rogue journalist or maintain their integrity (cough cough) and protest (too much) that the journalist should not have been subjected to the raid and allowed to release the contents of said bank records at a time of their choosing.

  25. Mother Lode

    Malcolm Turnbull communicated to many via the wickr app.

    I have heard of Tinder. I have heard of Grindr. If Trumble is using something called wickr would I be correct in assuming it is for people want sweaty trysts with themselves?

    He gets a forbidden pleasure from making himself feel cheap and dirty.

    Inexplicable rashes would prompt more that a little panic though.

  26. pbw

    Chris M,

    And they probably have access to all of the phones already which would save a lot of trouble.

  27. pbw

    Mother Lode,
    Wickr is an encoded message app. If memory serves (however sporadically) once the receiver closes the message, it is deleted from his device.

  28. Kurt

    These authoritarian laws are often introduced under the guise of keeping us safe. Yet if we didn’t fight foreign wars and didn’t bring ‘diverse’ people here who want to kill us, we wouldn’t need them. I wonder if homogenous Japan which doesn’t fight foreign wars on ‘terror’ needs these sort of laws?
    I guess the point im making is our policy choices are making us unsafe and forcing us to lose our freedoms. But nobody seems to ask inconvenient questions like this.

  29. Mother Lode

    Mother Lode,
    Wickr is an encoded message app. If memory serves (however sporadically) once the receiver closes the message, it is deleted from his device.

    So what does he use when he wants to get down and dirty with himself?

  30. billie

    Australia, NZ, Canada, US and European customs can all demand your PIN/passcode/password for your phone, laptop or ipad/tablet at the border .. if you don’t hand it over, you are denied entry.

    If you use a pre-paid SIM in some of Europe, it will be turned off by providers if you haven’t supplied sufficient identification for them to be satisfied you are an innocent user.

    don’t have anything on your devices you would be distressed at losing

    I know people who have a seperate, old phone with bugger all on it, maybe Pokemon Go, for travel

    your phone may be encrypted here and you are covered by Australian privacy laws and the telecommunications act, but anywhere else, you will probably find your phone is not encrypted .. likely too thta foreigners phones if activatd in Australia, are not encrypted

    folks, it’s a jungle out there and criminals and terrorists have brought about these changes to what were previously thought people’s castles

  31. thefrollickingmole
    #3040693, posted on June 12, 2019 at 9:13 am

    https://www.sydneycriminallawyers.com.au/blog/can-police-demand-the-password-to-my-phone-or-computer/

    That mechanism is contained in section 3LA of the Crimes Act 1914 (Cth) (“the Act”), which provides that “a constable may apply to a magistrate for an order to provide any information or assistance that is reasonable and necessary” to allow them to access data stored on “a computer or data storage device.”

    A “constable” is defined by section 3 of the Act as “a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory”.

    Police can apply to a magistrate for an “assistance order” requiring the owner or user of a computer or data storage device to provide such information they can establish a reasonable suspicion that the device holds or can enable access to evidential material relevant to a crime.

    The subject of the order is not required to be suspected of any crime. He or she merely needs to be the owner of the device that police reasonably suspect holds information relating to an offence.

    If the application is successful, the subject will be required to provide the password/s enabling police to gain access to the device/s, as well as any decryption information in order to make data accessible and intelligible to police.

    Failure to comply with an assistance order is a criminal offence. When the law was first enacted, the maximum penalty was 6 months imprisonment. However, authorities have since raised the maximum penalty to 2 years behind bars.

    This is bad law and why we should never vote for the major parties.

  32. Anthony

    I don’t know if it is still the case, but up till a couple of years ago what we would do is this:
    Remove the physical hard drive, put it in an external drive case, plug into another computer and simply over-write the administrator settings on the hard drive. Quite useful pre-cloud days when people racked up old laptops and forgot the passwords or changed jobs and couldn’t be contacted.

  33. Tel

    This was discussed a while back when feds changed warrant laws to include giving passwords.

    You would not need to do so under state laws for warrants.

    What part of the Australian Constitution gives the feds power to issue warrants at all?

  34. Tel

    These criminals need to be given only once chance and one sentence. A second offence should carry the death penalty. At the least.

    Exactly … starting with those criminals who have claimed powers that were never granted to them and who use those powers against their fellow citizens, which must surely be the worst crime of all.

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