Australian police could quickly access data held by companies like Google and Facebook under a planned deal with the United States.

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Home Affairs Minister Peter Dutton recently trumpeted the beginning of negotiations about the potential data swap, but some US officials and lawyers told the ABC they were sceptical about the deal and its prospects.

The current process of extracting US-based electronic information from social media platforms and email providers involves a laborious legal process that has long been a frustration for local law enforcement investigations.

America's CLOUD Act aims to address this, allowing the US to team up with friendly countries and create a streamlined two-way process for police.

These deals permit partner countries to ask for data from US companies under their own domestic legal system — so long as it doesn't concern US citizens or residents.

But there is some push back from Capitol Hill, as well as concerns these agreements could undermine human rights protections.

One US senate staffer described the CLOUD Act as "pushed down our throats" — the result of concerted lobbying by the United Kingdom.

The UK just completed its own deal with the US in October, and the Australian Government hopes to follow swiftly in its footsteps. So long as the US Congress does not get in the way.

Encryption laws become a hurdle

Australia's own encryption laws could potentially scuttle the deal — a risk flagged by critics including the Law Council of Australia.

The 2018 legislation, widely opposed by legal groups and the technology industry, allows police to issue "technical capability notices" to companies, demanding they build new ways for law enforcement to access people's content.

In early October, the chairman of the powerful US House Judiciary Committee wrote to Minister Dutton, warning the laws may disqualify Australia from any CLOUD Act deal.

The CLOUD Act demands that foreign nations maintain "robust, substantive and procedural protections for privacy and civil liberties" to be eligible.

Democratic Congressman Jerrold Nadler noted that Australia's encryption laws do not require the procedure of judicial review.

This raises the possibility Australia may not meet some of the minimum legal standards required by the CLOUD Act.

"The hope would be the US Government would say…'unless you have prior judicial review, you can't have it'," said Neema Singh Guliani, lawyer for the American Civil Liberties Union.

Home Affairs Minister Peter Dutton recently announced Australia would begin negotiating its own CLOUD Act deal with the US. ( ABC News: Jed Cooper )

There is also a concern that an Australian CLOUD Act request could be "coupled with" technical capability notices, suggested American University professor Jennifer Daskal, a former counsel at the Department of Justice.

The US could negotiate to specifically exclude this possibility, she said, if Australia does not take steps itself to fix the issue.

"Given Jerry Nadler's role on key congressional committees, it seems that it's worth at least paying attention to and trying to respond," she said.

The CLOUD Act doesn't create any new way of forcing companies to decrypt information. But neither does it prevent countries from having such laws.

A Home Affairs spokesperson said it has engaged with the US Department of Justice about Australia's encryption laws.

"No issues have been identified with the Assistance and Access Act that would prevent Australia from successfully negotiating a CLOUD Act bilateral agreement," they said.

Congress's power and appetite to undermine any Australia-US deal ultimately remains to be seen.

Human rights protections inadequate: experts

Australia's encryption laws are not the only hurdle being raised across the Pacific.

Some critics argue that the CLOUD Act does not contain enough human rights protections.

There are concerns that the legal process directing how the US could obtain the data of non-Australians from Australian internet providers remains unclear, for example, and vice versa.

"If I was representing Australia, I would demand equal treatment for Australians and anyone else," said Greg Nojeim of the Center for Democracy and Technology in Washington DC.

"In a way, these agreements are all about the rights of the nationals of countries that aren't entering into the agreement. That's a pretty dangerous situation."

The CLOUD Act does build in some protections and minimum standards for data requests. Including that requests be based on "articulable and credible facts".

According to Home Affairs, any United States order received under a CLOUD Act agreement would be subject to due process and the rule of law in the United States.

Ultimately, Ms Singh Guliani is concerned that partner countries are essentially "white listed" under the CLOUD Act as human rights-compliant, meaning that their requests may not be sufficiently vetted.

She pointed out that most countries do not have an "on and off switch for human rights" — it's all a little grey.

The US-UK deal tacitly recognised this concern, mandating that requests from the UK which might impact freedom of speech could be vetoed, and vice versa for crimes that carry the death penalty.

This could also be an issue during upcoming US-Australia negotiations, given the recent Australian Federal Police media raids, which were seen by many in the US as an attack on press freedom.