CLOUD Act treaty should be ratified, says committee

For cross-border US-Australia data exchange.

Australia’s Joint Standing Committee on Treaties (JSCT) has recommended the government ratify a cross-border treaty with the United States for easier law enforcement data access.

Last year, the Australian and US governments announced a bilateral deal under America’s Clarifying Lawful Overseas Use of Data Act (CLOUD Act). 

That triggered a parliamentary review in Australia and a congressional review in the US, processes needed before the treaty could be ratified and come into force.

Australia’s review, published today [pdf], identified “general concerns” with the treaty, but recommended its ratification, saying the agreement 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”.

The treaty would allow Australian and US authorities to access data directly from providers operating in the other’s jurisdiction in serious crime investigations.

It is designed to speed up access to data, compared to using the mutual legal assistance mechanism that applies today.

Concerns noted by the committee included that Australia would have “little control or oversight” of US actions under the treaty, and that the CLOUD Act would bypass “certain requirements” of Australia’s Privacy Act.

The Greens dissented, saying the administration of the treaty needed more transparency; that orders should only be granted by “a court, judge or magistrate” rather than by the authorities exercising powers under the treaty; that the treaty should cover offences with a maximum penalty of seven years’ imprisonment rather than three; and that “solid reporting” with “strict and enforceable repercussions” are needed.

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