A cross-border treaty with the United States has been recommended for ratification by Australia’s Joint Standing Committee on Treaties (JSCT) in order to facilitate law enforcement data access.
Under the US’s Clarifying Lawful Overseas Use of Data Act, the Australian and US governments struck a bilateral agreement last year (CLOUD Act).
That sparked the parliamentary and congressional reviews that were required before the treaty could be ratified and enter into force in Australia and the US, respectively.
Despite identifying “general concerns” with the treaty, Australia’s review, which was published today [pdf], advised its ratification, stating that it is “an important tool for Australian agencies to combat the increasingly sophisticated tactics of criminals, in a way that is largely consistent with existing domestic requirements.”
In serious crime investigations, the deal would enable Australian and US authorities to immediately access data from providers operating in the other’s territory.
Compared to currently in use mutual legal assistance, it is intended to speed up access to data.
The committee raised concerns about the CLOUD Act’s ability to circumvent “certain obligations” of Australia’s Privacy Act as well as the fact that Australia would have “no control or oversight” of US operations under the treaty.
The Greens expressed their disapproval, arguing that the treaty’s administration needed to be more transparent, that orders should only be issued by “a court, judge, or magistrate” and not by the authorities using their authority under the treaty, that the treaty should apply to offences with a maximum sentence of seven years in prison rather than three, and that “solid reporting” with “strict and enforceable repercussions” is required.