On December 15, 2021, the United States and Australia signed an agreement on cross-border law enforcement demands for data from service providers (“Agreement”). The Agreement is the second bilateral agreement to be entered into under the Clarifying Lawful Overseas Use of Data (CLOUD) Act, following the U.S.-UK agreement in 2019.
The Agreement also follows the passage of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 by the Australian government, which established a framework for its enforcement agencies to access certain electronic data for law enforcement and national security purposes held by companies outside of Australia. Specifically, that legislation created international production orders, a form of legal process that Australian enforcement authorities can use to compel the interception of real-time communications or the production of stored communications by communications providers in foreign countries with which Australia has an agreement. In an Explanatory Memorandum, the Australian government explained that “[t]he Bill provides the legislative framework for Australia to give effect to future bilateral and multilateral agreements for cross-border access to electronic information and communication data.”
While a copy of the Agreement has not yet been made public, the CLOUD Act generally requires that foreign governments remove barriers in their domestic laws that would prevent U.S. law enforcement and national security agencies from obtaining electronic data directly from providers located in their jurisdiction. See, e.g., 18 U.S.C. § 2523(b)(4)(I). The CLOUD Act also permits U.S. companies to disclose user data in response to orders from foreign governments that have entered into an agreement under the Act. See, e.g., Id. § 2511(2)(j). Moreover, the CLOUD Act mandates that the U.S. Attorney General certify to Congress that the partner country has “robust substantive and procedural protections for privacy and civil liberties.” Id. § 2523(b).
The Agreement will go into effect following congressional and parliamentary review in both the United States and Australia. In the U.S., the Agreement will take effect unless Congress disapproves by joint resolution.