‘Vital’ data sharing deal with US delayed

Denham Sadler
National Affairs Editor

Legislation paving the way for Australia to enter into an expedited data-sharing deal with the US has been delayed, despite the federal government saying it was “vital” that it was passed before the end of winter.

The Australian government has been in negotiations with the US government to secure a CLOUD Act data-sharing deal for nearly a year and introduced the legislation necessary to facilitate this in March.

The Telecommunications Legislation Amendment (International Production Orders) Bill 2020 sets out the framework for Australian to enter into a CLOUD Act deal, which would allow US authorities to request data directly from an Australian company without going through local authorities, and vice versa.

digital cloud act
Cloud Act: Vital legislation has been put on the backburner

This would provide a quicker avenue than the existing mutual assistance notice system.

The legislation was quickly referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry by Home Affairs minister Peter Dutton, who said it is an “essential precondition to the finalisation of the proposed cross-border access to a data agreement between Australia and United States”.

Mr Dutton said it was “vital” that the legislation pass through Parliament before the end of the 2020 winter sittings, but the government failed to do this, and the PJCIS is still yet to report on the bill, more than four months after its initial deadline.

In a letter to the Opposition in February, Mr Dutton said passing the CLOUD Act legislation was one of his highest priorities, and that it would “greatly improve the efficiency of Australia law enforcement’s access to the information they need to do their job”.

The PJCIS had first been tasked to report by 22 May, with this pushed back to 26 June due to the ongoing COVID-19 pandemic. But three months later, the committee is still yet to present its verdict on the legislation, and the reporting deadline has been removed entirely from the inquiry homepage.

The PJCIS Secretariat told InnovationAus the inquiry is “ongoing” and it has not been given an updated reporting date.

A spokesperson for the Department of Home Affairs said the government is still in negotiations with the US government on a CLOUD Act deal.

“The Australian and United States governments continue to work closely on finalisation of an agreement to permit law enforcement and national security agencies to more quickly and effectively respond to serious crime,” the spokesperson told InnovationAus.

It’s now unlikely that the necessary legislation will be passed this year, with only five full sitting weeks of Parliament left in 2020, including the federal budget in October.

The legislation will likely sail through Parliament when it is brought for debate, with the Opposition already indicating its support.

Labor said it supports a CLOUD Act deal, but such an agreement would need amendments to the controversial encryption legislation. The Coalition has said that the existing encryption powers are compatible with a CLOUD Act agreement.

The PJCIS has held three public hearings as part of its inquiry, and received 33 submissions.

Mr Dutton announced in October last year that Australia had entered into formal negotiations for the bilateral data-sharing agreement, saying that the current processes “risk loss of evidence and unacceptable delays to criminal justice outcomes”.

The International Civil Liberties and Technology Coalition, whose members include Google and Access Now, said the legislation “does not provide adequate safeguards to protect human rights” and requires “significant revisions”, pointing to a lack of prior judicial review, insufficient notice and transparency and a failure to provide a clear mechanism to challenge a request for data.

The Australian Privacy Foundation also labelled the bill as “deeply flawed” and presenting a “framework for future abuse”.

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