More on the Cloud, Discovery, and the Stored Communications Act
My former colleague and friend Nolan Goldberg has published this nice piece on "Securing Communications in the Cloud" regarding the Central District of Illinois decision in US v. Weaver (yet another child pornography case contributing to the development of information law). Nolan points out the Weaver court's focus on the unique nature of web (or cloud)-based email services. With webmail, a copy stored by the host in the cloud, in this case Microsoft Hotmail, might be the only copy, not just a backup. Therefore, the logic goes under the Stored Communications Act, the emails sought by the government in Weaver were not in electronic storage and the government only needed a trial subpoena, not a warrant.
I must confess -- civil not criminal litigator (and geek) that I am -- the thing I find most interesting about Weaver is the court's finding that Microsoft, in providing Hotmail, is both an "electronic communications service" and a provider of a "remote computing service." That means that an organization/employer that subscribes to such a web-based or cloud service for use by its employees/contractors (as opposed to the actual sender(s) and/or recipient(s) of such messages alone) may have the ability to consent to disclosures of emails, texts, tweets, etc. in civil discovery . . . or may not. That was the real issue underlying the Ninth Circuit's decision -- the part the Supreme Court is not going to review -- in the now ubiquitous and much hyped Quon decision (aptly described by another former colleague and friend Cliff Davidson, here). I predict many more Stored Communications Act encounters for the cloud in courtrooms -- and not just in child pornography cases.
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The Bloomberg report was a good read. It got me thinking about businesses that are signing up for cloud based collaboration apps like yammer, cubetree, glasscubes etc. without first actually signing a contract. These services utilize free offerings to entice users into signing up, and then offer an upsell version. The problem is that any data discovery/retention/destruction features are only available in the upsell version. Users don’t realize that conversations in these collaboration suites are legally binding and subject to the legal rules of electronic discovery and can be subpoenaed in a lawsuit.
So who covers the costs associated with a subpoenaed production when a business is using the free version of let’s say yammer where there is no contract?