Parliamentary Scrutiny of CLOUD Act Data Access Negotiations Essential

8 October 2019

Centre Alliance Senator Rex Patrick today called for rigorous parliamentary scrutiny of negotiations between the Morrison Government and the US Trump Administration to increase US law enforcement and security agency access to the data of Australian citizens.  

“The announcement overnight that Home Affairs Minister Peter Dutton and President Trump’s Attorney-General William Barr have opened negotiations on a bilateral agreement to facilitate access by US government investigators to electronic information and data held in Australia is something that will need to be subject to very close scrutiny by the Australian Parliament,” Senator Patrick said.

“Given their track record, it is not easy to have confidence that a negotiation undertaken by Home Affairs Minister Dutton and his departmental Secretary Mike Pezzullo will properly protect the data rights and privacy of Australians, including protection of data generated by journalists and media organisations.”

“Few Australians will have heard of the 2018 US Clarifying Lawful Overseas Use of Data (CLOUD) Act, but that’s the law that the Morrison Government will be working to effectively incorporate into Australia’s data privacy and protection framework.”

The US CLOUD Act was introduced following difficulties that the US Federal Bureau of Investigations had in obtaining data held by US service providers outside the United States. The Act provides an expedited route for data access by law enforcement and security agencies through "executive agreements" – bilateral agreements between the US and foreign governments to provide requested data in a streamlined manner.  

The CLOUD Act received strong support from the US Justice Department and information giants Microsoft, Apple and Google but was heavily criticised by civil rights and privacy groups including the Electronic Frontier Foundation, the American Civil Liberties Union, Amnesty International and Human Rights Watch.  

“While it is essential to ensure that law enforcement can investigate serious crimes through timely access to electronic data, it is equally vital that any new bilateral data access regime should properly protect the rights and privacy of Australian citizens,” Senator Patrick said. “That includes strong protections for journalists and media organisations that may be targeted in the US Government’s politically driven crack down on information leaks, whistleblowers, journalists and media organisations.”

“Consequently it will be essential that the Australian Parliament, and especially the Senate and its Committees, keep a very 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, 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.”  

“Minister Dutton and Secretary Pezzullo have already demonstrated their own cavalier, indeed dismissive attitude, towards fundamental rights and freedoms, including data privacy and the freedom of the press.”

“They cannot be trusted to get the balance right. The Parliament, and especially the Senate, will need to keep a very close eye on them.”

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