Govt urged to refine CLOUD Act-readying bill

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Govt urged to refine CLOUD Act-readying bill

But intelligence committee gives in principle support.

A parliamentary inquiry has recommended additional safeguards be embedded in a bill that paves the way for a landmark reciprocal data access regime between Australian and US authorities.

The bipartisan Parliamentary Joint Committee on Intelligence and Security (PJCIS) handed down its report [pdf] this week, recommending that the International Production Orders Bill pass with 23 changes.

The bill will to establish a new framework under the Telecommunications (Interception and Access) Act, allowing “reciprocal cross-border access to communications data” with the US, UK and other foreign governments.

It is necessary for Australia to enter into future bilateral agreements with the US under the US Clarifying Lawful Overseas Use of Data Act (CLOUD Act), which has been on the cards since October 2019.

The CLOUD Act was enacted in 2018 to compel US-based technology companies to hand over data held offshore under warrant and create a pathway for foreign governments to serve US providers directly with requests for user data, bypassing the mutual legal assistance mechanism.

Under the bill, law enforcement and national security agencies, both in Australia and overseas, will be able to access data directly from service providers using international production orders (IPOs), as long as international agreements are in place.

The committee has recommended that any agreements with a foreign government be published and tabled prior to signing, to allow parliamentary scrutiny, and be subject to at least a 15 days period of disallowance.

It has also asked that agreements also be exempt from the parliamentary treaty process if they are renewed or extended for a period of three years and no changes are proposed, but that “any further renewal or extension… be subject to parliamentary scrutiny”.

Any IPO under an agreement should also be limited to the purposes of “obtaining information relating to the prevention, detection, investigation or prosecution of serious crime, including terrorism”, the committee said.

The committee also urged that foreign governments meet additional requirements “in order to qualify as a designated international agreement”, including guarantees that Australians won’t be “intentionally” targeted.

In relation to “production orders for the interception of communications”, it asks that “interception activities of the foreign government only be carried out for the purpose of obtaining information about communication of an individual who is outside of Australia”.

The committee similarly wants IPOs to only be used as a last resort measure “if the same information could not reasonably be obtained by another less intrusive method”, not last longer than three years and “comply with the domestic law of the relevant foreign country”.

It has also reiterated calls in earlier reports for the government to ensure the Commonwealth Ombudsman is “sufficiently” resourced to provide oversight of the powers, which it has agreed to.

In this week’s federal budget, the government handed the Ombudsman the bulk of a $9.6 million funding package aimed at supporting the “bilateral exchange of information between Australia and the US”.

Funding was also provided to the Inspector-General of Intelligence and Security (IGIS), which the committee also recommended should be “given appropriate resources to enable effective oversight”.

IGIS should also be given the ability to “access the register of IPOs in connection with its oversight responsibilities” and share IPOs information with the Ombudsman where necessary, the committee said.

“The Committee considers that robust oversight arrangements provide assurance… these necessarily intrusive powers are used proportionately and appropriately to investigate and prosecute the commission of serious crimes and uphold Australia’s national security,” it added.

PJCIS chair and liberal senator James Paterson on Wednesday said the scheme was “a vital power in an increasingly digital work”, giving law enforcement and national security agencies “faster access” to offshore evidence during investigations

“The committee’s recommendations seek to provide necessary assurances that any international agreement that Australia enters into under the provision in the bill are necessary, proportionate and subject to appropriate oversight,” he said.

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