Thursday, 17 October 2019
Clarifying Lawful Overseas Use of Data Act
At the request of Senator Keneally, I move:
That the Senate—
(a) notes that:
(i) it can currently take up to two years for police or security agencies to access data held in the United States on platforms like WhatsApp and Facebook, in relation to serious crime investigations, such as terrorism, violent crime, paedophilia and cybercrime,
(ii) the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), enacted in March 2018 by the United States Congress, empowers the United States Government to enter into agreements with foreign governments to radically speed up the time it takes foreign police and security agencies to access electronic data held in the US for the purpose of investigating serious crimes,
(iii) the CLOUD Act includes a number of requirements that must be satisfied before the United States Government can enter into an agreement with a foreign government, including that the foreign government's domestic laws must afford 'robust substantive and procedural protections for privacy and civil liberties in light of the data collection and activities of the foreign government that will be subject to the agreement',
(iv) on 3 October 2019, the United Kingdom (UK) and the United States announced they had successfully concluded their negotiations and entered into an agreement under the CLOUD Act, meaning UK police and security agencies will be able to access data held in the United States for serious crime investigations substantially faster Australian police and security agencies,
(vi) there are widespread concerns that Australia's encryption laws, passed last year by the Morrison Government, do not provide 'robust substantive and procedural protections' as required by the CLOUD Act,
(vii) amendments presented to the Senate last year, but rejected by the Government, could have provided appropriate 'robust substantive and procedural protections',
(viii) less than 24 hours after the announcement that Australia-United States CLOUD Act negotiations had begun on 7 October 2019, the Chairman of the United States House Judiciary Committee,
Congressman Jerrold Nadler, sent a letter to the Minister for Home Affairs expressing grave concerns about the absence of 'robust substantive and procedural protections' in the Australian Government's encryption laws,
(ix) the speed with which Congressman Nadler, whose committee plays a key role in approving any potential agreement between the United States and Australia, wrote his letter suggests that Australia may be a long way off from being able to access electronic data held in the United States to investigate serious crimes, such as terrorism, violent crime, paedophilia and cybercrime, and
(x) without an agreement between the United States and Australia under the CLOUD Act, victims of vile crimes, such as terrorism, violent crime, paedophilia and cybercrime, will continue to have to wait for up to two years for police to even be able to get a good start on their case;
(i) the Australian Government for not being as proactive as the UK Government has been in securing a CLOUD Act agreement with the United States, and
(ii) the Australian Government for isolating Australian police and security agencies from potential resources that could reduce wait times to get access to critical data, held in the United States, to aid in the investigation of serious crimes, such as terrorism, violent crime, paedophilia and cybercrime from two years to just a few days; and
(c) calls on the Federal Government to work productively with all parties in the Senate to ensure Australia's encryption legislation can be amended to address any and all obstacles in the way of securing the best outcome for Australian police and security agencies, and the Australian people.
The Australian government welcomes the commencement of negotiations for a bilateral agreement with the United States in relation to its Clarifying Lawful Overseas Use of Data Act—the CLOUD Act. The CLOUD Act bilateral agreement would allow Australian law enforcement and national security agencies to seek lawful access to data directly from the United States providers and vice versa. The US Attorney-General recognised Australia as a close partner with robust protections for privacy and civil liberties, and the government can advise that no issues have been identified with the Telecommunications and Other Legislation Amendment (Assistance and Access) Act that would prevent Australia from successfully negotiating a CLOUD Act bilateral agreement with the United States.
Australia's encryption laws are world's worst practice. The assistance and access act was rightfully condemned in this country and around the world as a wrecker of Australian rights and jobs. Although we have concerns regarding a potential bilateral CLOUD Act agreement with the US, a legislated agreement would at least shine a light and could potentially regulate how data is shared between partner nations, which we know is already happening behind closed doors. However, we should be working towards rights based agreements, particularly as in Australia we have fewer digital rights compared to prospective CLOUD Act partners the US and the UK.
Centre Alliance will be supporting this motion. Whilst it's essential to ensure that law enforcement can investigate serious crimes through timely access to electronic data, it is vital that any bilateral data access regimes should properly protect the rights and privacies of Australian citizens. That includes strong protection for journalists and media organisations that may be targeted in the US government's politically driven crackdown on information leaks, whistleblowers, journalists and media organisations. Consequently, it will be essential that the Australian parliament, especially the Senate and its committees, keep a close watch on the progress of these negotiations. No agreement relating to the CLOUD Act should be signed until after the full text has been made public and subjected to review by the Joint Standing Committee on Treaties and other relevant parliamentary committees, and the parliament has examined and passed the necessary enabling legislation.