Legal Implications of Cloud Computing -- Part Two (Privacy and the Cloud)
Last month we posted some basics on cloud computing designed to provide some context and identify the legal issues. What is the cloud? Why is everyone in the tech community talking about it? Why do we as lawyers even care? Dave provided a few things for our readers to think about -- privacy, security, e-discovery.
Now, let's dig a little deeper.
I am going to start with privacy and cross-border data transfers. Is there privacy in the cloud? What are the privacy laws to keep in mind? What are an organization's compliance obligations? As with so many issues in the privacy space, the answer begins with one key principle -- location, location, location. For those of you who prefer to listen, check out my recent webinar on International Regulatory Issues in the Cloud, or you can download the slides (PPTX). For everyone else, read on after the jump.
In the world of the cloud, location appears to be irrelevant. In the cloud, data effortlessly flows around the globe, ignoring boundaries and time zones, and magically appears on demand. Not surprisingly, the existing legal structure is far from prepared for the reality of existing technology. Every jurisdiction has its own laws, and its own compliance requirements. As that data instantaneously circumnavigates the globe, it may already be too late to comply with privacy laws in every jurisdiction.
You have undoubtedly heard that the laws of this country are like a patchwork quilt. They have popped up in certain sectors (financial, health) and with respect to certain types of sensitive information (e.g., kids' data). There are federal laws like Gramm-Leach-Bliley (applicable to financial institutions), HIPAA (applicable to health care providers and others dealing with health information and related entities), COPPA (applicable to data of children under 13 collected online), and the USA Patriot Act (may be applicable to foreign companies that work with cloud providers that allow data to reside in or flow through the US). In addition, we have a panoply of state laws requiring notification in the event of a breach of sensitive information and, in some cases, requiring the implementation of safeguards to protect sensitive information and/or secure disposal of such information.
By contrast, the European Union has a comprehensive privacy framework, the EU Data Protection Directive. Each member state has its own unique law implementing the Directive. The most notable thing about the EU Directive and member state laws for purposes of cloud computing is this -- in the absence of specific compliance mechanisms, the EU prohibits (yes, you read correctly, prohibits) the transfer of personal information of EU residents out of the EU to the US and the vast majority of countries around the world.
What does this mean for cloud computing? If you want to put data in the cloud that includes personal information of EU residents (and that might be something as simple as an email address or employment information), and the data will flow from the EU to almost anywhere in the world, you cannot simple throw the data in the cloud and hope for the best. You need to have, at a minimum, one or more of the following:
- International Safe Harbor Certification (which allows data transfer from the EU to the US, but not from the EU to other countries);
- model contracts (which allow data transfer from the EU to non-US countries, but do not always work well with multi-tiered vendor relationships); or
- Binding Corporate Rules (which are designed for a multinational company and therefore may not function well for cloud provider relationships).
So what, what does this tell us? All of the stakeholders within an organization should be part of the cloud discussion and due diligence -- IT, legal, information security, and all of the relevant business groups. And those stakeholders, in investigating a potential cloud relationship and in negotiating the terms of a relationship with a cloud provider, should consider and pose the following questions internally and to the vendor long before any contract is signed:
- What kind of data will be in the cloud?
- Where do the data subjects reside?
- Where will the data be stored?
- Where are the servers?
- Will the data be transferred to other locations and, if so, when and where?
- Can certain types of data be restricted to particular geographic areas?
- What is our compliance plan for cross-border data transfers?
Is that the end of the inquiry? No, it is just the tip of the iceberg, but it is a good start.