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Cloud computing is an
emerging area, but what privacy rights do users have? The Electronic
Communications Privacy Act and its component, the Stored Communications Act,
are difficult enough to apply to regular computers and e-mail. What are the
rules for cloud computing? Do the statutes need to be amended? In this
Analysis, Kirsten Koepsel, Carey Lening and Ron Weikers examine the issues, service
providers' practices, and the best practices for users. They write:
Google Documents, Amazon Web
Services (AWS), and Mozy are examples of "cloud computing." Google
Docs allows the user to "create and share your work online,"
"upload your files from your desktop," and gain "access [from]
anywhere." With AWS a user can "requisition compute[r] power,
storage, and other services --- gaining access to a suite of elastic IT
infrastructure services as your business demands them." Mozy allows the
user to protect music, photos, and other computer files. Users agree to terms
of service prior to being able to access the "cloud" or store their
documents or e-mails in the "cloud." Google's terms of service
include a provision that "if Google disables access to your account, you
may be prevented from accessing the Services, your account details or any files
or other content which is contained in your account." . . . .
. . . .
Right of Privacy
in information on computers
The Fourth Amendment states:
"The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures, shall not be
violated...." It is well settled that the right of privacy of individuals
extends to protection of information on their own personal hard drives. The
expectation of a right of privacy was extended to Internet communications under
the Stored Communications Act (SCA) enacted as part of the Electronic
Communications Privacy Act (ECPA) in 1986. Under the SCA, two types of
providers are regulated: of electronic communication services (ECS) and of remote
computing services (RCS). Access to stored communications located at an ECS
requires a search warrant for disclosure of the contents of electronic
communications in electronic storage for 180 days or less to government
entities. Contents of electronic communications in electronic storage for more
than 180 days at a RCS can be obtained by a search warrant, a subpoena, or a
court order with prior notice to the subscriber. Privacy protections such as a
search warrant, subpoena, or court order apply only to public computers under
the SCA. An e-mail or a document is subject to different legal standards during
. . . .
When the user puts
information in the "cloud," she may not even know where the
"cloud" is located or what expectation of privacy to have for her
data and documents in the "cloud." Information that the user puts in
the "cloud" eventually "ends up on a physical machine owned by a
particular company or person located in a specific country." The stored information
is then subject to the laws of the specific country in which the physical
machine is located. If the physical machine is located in the United States,
then the SCA would govern the right of privacy in the contents.
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