Australia and the United States have begun negotiations which could see law enforcement and security agencies on both sides of the Pacific gaining access to data held on cloud platforms in the other country.
Formal negotiations for a bilateral agreement under the US Clarifying Lawful Overseas Use of Data Act – otherwise known as the Cloud Act – began this week.
If formalised and approved the agreement will require service providers in Australia and the United States ‘to respond to lawful orders from the other country without fear of running afoul of restrictions on disclosure and thus provide more access for both countries to providers holding electronic evidence that is crucial in today’s investigations and prosecutions,” says United States Attorney General William Barr.
In plain English, the Cloud would require cloud and social network providers in Australia to hand over data relevant to serious crime when requested by US law enforcement agencies, and vice versa. The Act removes some of the barriers to gaining access to the data which the US says can take between six months to two years, with requests for data being submitted first to the relevant government for approval. The Cloud Act aims to reduce that to weeks or even days.
The opening of negotiations comes just a week after the US signed a similar ‘world first’ data access Cloud Act deal with the UK.
New legislation would need to be written and passed in Australia before the deal could become official.
Australian Minister for Home Affairs, Peter Dutton, says “We have some way to go before the agreement is finalised, but once in place it will mean service providers based in the United States can respond directly to electronic data requests issued by our enforcement agencies under Australian law for data critical for the prevention, detection, investigation and prosecution of serious crime.”
Dutton current processes for obtaining electronic information held by service providers in other countries risk loss of evidence and unacceptable delays to criminal justice outcomes.
“When police are investigating a terrorist plot or serious crime such as child exploitation, they need to be able to move forward without delay, but within the law – and the Cloud Act strikes exactly that balance,” Dutton says.
“This is the way of the future between likeminded countries.”
The negotiations come as the Australian, US and UK governments call on Facebook to hold off on its plans to deploy end-to-end encryption across Messenger, Instagram and WhatsApp messaging.