A legal expert has said that it is absurd to consider the use of Find My iPhone software to track a stolen iPad located in a stranger's house as a form of "electronic trespassing".
That is exactly what one Canberra man reportedly did when a stolen iPad was found at his house. The owner of the missing iPad is said to have used Find My iPhone to play a sound alert on the device. Police then obtained a search warrant to seize the device.
When the police wanted to issue a court order to obtain the alleged thief's fingerprints, the man's lawyer reportedly argued against it, claiming that the evidence was illegally obtained because the
The police reportedly labelled this claim as absurd, because it would mean that anybody with a Wi-Fi signal that overlapped their neighbour's property would be committing an offence.
But electronic trespassing is real, and there have been legal cases concerning that kind of offence in the US, although there is no such case law in Australia, according to Maddocks ICT partner Robert Gregory.
Even if there were such laws in Australia, the idea that a person could commit trespassing electronically through Find My iPhone would barely be applicable, Gregory said.
"If somebody comes into your computer system and changes the orientation of the magnetic orientation of the particles on your hard drive, then they have trespassed your hard drive — that is electronic trespassing," he told ZDNet Australia. "There have actually been cases on that in the US."
Gregory doesn't believe that electronic trespassing will become a legal concern in Australia, since it would already be covered under existing cybercrime law.
"When you think about it from a criminal perspective, there is already more specific criminal offences that apply," he said. "So, at the Commonwealth level, there are specific offences for accessing or changing a computer system without consent, and you can just charge that person with an actual hacking offense."
Legal claims made by the iPad theft suspect is a completely different matter — not to mention that it is not possible for the owner of the device to trespass on his own property.
But the alleged thief is arguing that setting off the alert on the iPad is trespassing, because the alarm went off on his property.
"An argument presumably he could make, and again this is in the realms of absurd, would be to say by causing the iPad to set off an audible alarm, the soundwaves disturbed the particles in the air in his property," Gregory said. "Once again, how you can make any sort of argument with that seems once again to be absurd."
Paul Kallenbach, partner of technology practice Minter Ellison, agrees that related offences to this would mainly be about accessing information systems without authority.
"It doesn't sound to me to be a proper course of action," he told ZDNet Australia.
In any case, that would be a tort, not a defence.
The ACT Magistrates Court is yet to decide whether to accept the electronic trespassing defence; however, Gregory has faith that the court will exercise common sense on the matter.