The two biggest objections to cloud computing are security and compliance / regulations. I believe both have some validity but I also believe both can be used as excuses to bury heads into sands and holes.
And I believe shining a light is the best way to assess risk. So it's with great delight I found this article: Cloud Computing Down to Earth: A Primer for Corporate Counsel which starts to list the types of risks that need to be enumarated.
These include:
- unauthorized access to confidential client information by a vendor’s employees (or sub-contractors) or by outside parties (e.g., hackers) via the Internet, see id.;
- the storage of information on servers in countries with fewer legal protections for electronically stored information (“ESI”), see id. at 4, which can be especially problematic in regulated industries that have highly defined requirements with respect to the handling of ESI throughout its life cycle;
- a vendor’s failure to back up data adequately, see id.;
- the ability to access corporate data using easily accessible software in the event that the corporation terminates its relationship with the cloud computing provider or the provider goes out of business, see id.;
- the provider’s procedures for responding to (or when appropriate, resisting) government requests for access to information, see id. What if, for example, a government (domestic or foreign) seizes the actual servers (i.e. hardware) on which Corporation A’s confidential and highly regulated data resides in order to take control of Corporation B’s data, which resides on the same shared, multitenant server?;
- policies for notifying the corporation of security breaches, see id., so that counsel can immediately fulfill her duties with respect to client notification under Model Rule of Professional Conduct 1.4;
- insufficient data encryption, see id.;
- unclear policies regarding the corporation’s ability to “control” its own data, which may result in a quandary if served with a request for production of materials under Rule 34 of the Federal Rules of Civil Procedure;
- policies for data destruction when the corporation no longer wants the relevant data available or transfers it to a different host, see id.
- the potential warrantless seizure of corporate electronic mail under the anachronistic Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. § 2510, which includes the Stored Communications Act, 18 U.S.C. §§ 2701-12. Signed into law in 1986, the ECPA established a procedural framework for law enforcement authorities to obtain wire and electronic information, including files stored on a computer. Think Miami Vice, not cloud computing. Only two months ago, the Sixth Circuit in United States v. Warshak (6th Cir. Dec 14, 2010), held valid based on the government’s dubious reliance on the Stored Communications Act a warrantless seizure of corporate e-mails notwithstanding a lengthy and informed exposition on the relationship between technology and the Fourth Amendment, see id. slip op. at 14-29.
Actually, as I read these, the ones that I think unique to cloud are 7,8,9, and 10. It's not that 1-6 are not realistic, is that these are existing problems for any outsourcing deal, or internet connected device, which means EVERYTHING.
The rest of the post provides recommendations on how legal counsel should prepare
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