By Staff Writer.
Australia and the United States are smoothing the way for better electronic data sharing after signing an agreement last week. Both Governments say the agreement will give law enforcement agencies in each country speedier access to electronic data to prevent, detect, investigate, and prosecute serious crime.
Behind the agreement is the Clarifying Lawful Overseas Use of Data (CLOUD) Act passed by the US Congress in 2018. The Bill allows authorities in each country to access certain electronic data from communication service providers in each other’s jurisdiction.
Australia-based email providers, telcos, social media platforms, and cloud storage services will now answer directly to US-based agencies like the FBI.
The US Department of Justice says the number of requests from foreign agencies seeking data from US-based communications service providers has risen rapidly in recent years.
The CLOUD Act responds to that demand and attempts to speed up access to electronic data and subsequent prosecutions.
The bilateral nature of the Bill gives the US access to electronic data held in certain foreign jurisdictions. Previously, Australia and the US have relied on mutual legal assistance treaties to hand over electronic data.
In June 2021, the Australian Government passed the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 to facilitate co-operation with the US under the provisions of the CLOUD Act.
Under the CLOUD Act agreement, the foreign authorities may serve their “requests” for certain electronic data directly on offshore providers per US law, and providers may disclose responsive data directly to the foreign authorities.
“The Agreement paves the way for more efficient cross-border transfers of data between the United States and Australia, so that our governments can more effectively counter serious crime, including terrorism, while adhering to the privacy and civil liberties values that we both share,” said US Attorney General Merrick B. Garland.
The Department of Justice notes the CLOUD Act doesn’t give Government’s carte blanche to electronic data. Data can only be accessed to obtain information relating to the prevention, detection, investigation, or prosecution of serious crime and only in response to the legal process.
The Department of Justice says existing agreements and legal processes already allow it and other countries to access electronic data. The CLOUD Act simply speeds up the process. The US has already signed an electronic data-sharing agreement with the United Kingdom under CLOUD Act provisions.
Keywords in the agreement with Australia include access to “certain” electronic data concerning “serious” crime. Cited examples of serious crime include child exploitation, ransomware attacks, terrorism, and cyber-attacks on critical infrastructure.
Like clear is what “certain” data is and how “privacy and civil liberties” will be protected.
“By strengthening both nations’ ability to fight crime and giving our law enforcement agencies more efficient access to evidence, we’re ensuring the safety, security, and prosperity of our citizens,” said Australia’s Minister for Home Affairs, Karen Andrews.
The Australian Government has previously confirmed it remains open to negotiating further agreements with “like-minded foreign governments” for reciprocal access to communications data.
