Global data-sharing deal ‘deeply flawed’

Denham Sadler
National Affairs Editor

Legislation paving the way for a data-sharing deal with the US is “deeply flawed” and provides a “framework for future abuse”, according to the Australian Privacy Foundation.

The Parliamentary Joint Committee on Intelligence and Security is currently conducting an inquiry into the Telecommunications Legislation Amendment (International Production Orders) Bill 2020, which lays the legal foundation for Australia to enter into a CLOUD Act agreement with the United States.

This would facilitate expedited access to data held by an American company to Australian authorities and vice versa. The legislation was introduced to Parliament by the Coalition at the start of March and was quickly referred to the PJCIS.

CLOUD Act data sharing
Data sharing: CLOUD Act deal is hammered

The committee is accepting submissions until Thursday and is due to report back on the bill by 22 May. Just two submissions have been made public so far.

The Australian Privacy Foundation called the legislation deeply troubling, open to abuse and lacking in justification. In the other, the government’s anti-corruption commission argued the legislation would help it to investigate corruption and get access to the necessary data in a speedy way.

The data-sharing legislation is “deeply flawed” and would “erode privacy and civil liberty protections,” Australian Privacy Foundation vice-chairs Dr Bruce Baer Arnold and David Vaile said in the submission.

“It conflates bureaucratic convenience with what is imperative. It obfuscates accountability through inadequate transparency, including reliance on the under-resourced Commonwealth Ombudsman,” they said.

“It enshrines an inappropriate level of discretion and weakens parliamentary oversight regarding interaction with governments that disrespect human rights.

“It is a manifestation of a drip-by-drip erosion of privacy protection in the absence of a justiciably constitutionally-enshrined right to privacy in accord with international human rights framework.”

Too much discretion is given to politicians as part of the bill, they argued, saying this provides a “framework for future abuse” the

“It emphasises ministerial discretion and the discretion of other decision-makers, with insufficient regard for proportionality and a grossly inadequate mechanism for oversight. It enshrines an undue degree of discretion by decision-makers, privileging form over substance,” the Foundation said.

The organisation also criticised the short timeframe given for submissions, especially given the global COVID-19 pandemic.

“The Foundation, along with other civil society bodies, expresses concern regarding the short timeframe for public consideration of a major legislative proposal, particularly during the COVID-19 pandemic,” they said.

“Civil society has a short opportunity to comment on a detailed and technically challenging proposal in the absence of a clear justification for changes that progressively erode privacy protection.”

In the only other publicly available submission, the Australian Commission for Law Enforcement Integrity (ACLEI) said the new powers included under a CLOUD Act deal would greatly improve its ability to fight political corruption.

The organisation must use the current mutual legal assistance regime to request data held by foreign companies, but this could be “time-consuming and slow”, the ACLEI said.

“Significant delays may occur in the execution of requests at multiple points; in the application, transmission and execution of a mutual assistance request. Such delays might ultimately slow down and hinder the investigation,” the ACLEI submission said.

This has meant that the ACLEI rarely actually goes through the process to request offshore data to assist in inquiries because the “effort involved in pursuing the information and the time it takes for it to be provided diminishes its utility”.

The new legislation would mean the ACLEI would request this data more regularly from companies like Facebook, Hotmail, WhatsApp and Google.

“The regime proposed would simplify and streamline access to this information. This type of information could prove critical to the success of corruption investigations and criminal prosecutions resulting from those investigations,” the submission said.

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