“Especially when considering how the interception powers under this Bill could be used in tandem with technical capability notices under the controversial Telecommunications and Other Legislation (Assistance and Access) Act,” it wrote. Making a recommendation to the PJCIS, Google said the Bill should not apply to service providers in their capacity as infrastructure providers to corporations or government entities, saying corporations or government entities are best placed to produce the requested records themselves. Under the Bill, designated communications providers are instructed to provide any requested communications and data to the requesting agency or the Australian Designated Authority. Google would prefer the authority to be a two-way channel.
Google also poked holes in the Bill’s enforcement threshold. Civil penalties for non-compliance with an IPO establishes a framework for compliance. If a designated communications provider receives a valid IPO and the designated communications provider meets the “enforcement threshold” when the IPO is issued, the designated communications provider must comply with the IPO. Google labelled the two-step test that is the threshold, a “relatively low bar to meet.” “Failure to comply with an IPO may lead to a civil penalty of up to AU$10 million for body corporates. The imposition of a mandatory obligation to comply with an IPO is contrary to the purpose of the CLOUD Act which is to lift blocking statutes, but explicitly does not create a compulsory obligation on service providers,” it said. Specifically, the search giant said it was concerned by the attempt to impose a mandatory obligation on overseas-based designated communications providers that exists “only in the construct of an otherwise non-compulsory international agreement.”Google is seeking further information about the role that eligible judges will play in approving IPOs that involve the interception of communications. It also wants the appeal options contained within the Bill to be strengthened.