OTI Leads Coalition in Sending Comments to Australian Parliament on CLOUD Act Legislation

On April 24, 2020, New America’s Open Technology Institute (OTI), as part of an international coalition of 32 members, filed comments expressing concerns about Australia’s draft Telecommunications Legislation Amendment (International Production Orders) Bill 2020, urging the Parliamentary Joint Committee on Intelligence and Security (PJCIS) not to move forward with the bill as written.

The draft International Production Orders bill under review is designed to allow Australia to enter into a bilateral agreement with the United States under the U.S. Clarifying Lawful Overseas Use of Data Act, or “CLOUD Act.” Passage of this bill would permit the Australian government to make direct requests for electronic communications information from providers based in the United States, and permit the U.S. government to make similar requests from Australian providers.

The coalition urged the PJCIS to include significant revisions to better safeguard privacy and civil liberties before moving forward with the bill. Specifically, the coalition outlined its concerns regarding the draft bill’s: (1) failure to ensure prior judicial review under a robust legal standard; (2) failure to provide sufficient notice and transparency; (3) attempt to require compulsory production of user data from service providers; and (4) failure to provide a clear and robust mechanism for providers to challenge requests.

The coalition includes civil society organizations dedicated to protecting civil liberties, human rights, and innovation online; technology companies and trade associations; as well as technical and policy experts. Members of the coalition have previously fought for privacy safeguards to be included in prior bilateral agreements under the CLOUD Act, and in the U.S. CLOUD Act itself.

The following quote can be attributed to Andi Wilson Thompson, senior policy analyst at New America’s Open Technology Institute:

“Significant revisions are necessary before the Australian Parliament should consider implementing a framework for cross-border access to communications information to ensure that the process protects privacy and civil liberties. The draft as written does not provide robust mechanisms for prior judicial review of requests, or to allow providers to challenge those requests. It also does not have sufficient requirements for notice and transparency. Without the recommendations made by our coalition, the bill does not provide adequate human rights safeguards. We also encourage the Parliamentary Committee to release the draft text of the agreement before the passage of the legislation to promote transparency and accountability.”