Cloudy Days Call for Fixing the Disharmony of International Laws

Remote data storage, more sexily known as “cloud computing,” has become the “new normal.”  A poll commissioned by Microsoft found that eighty-four percent of Americans now use an online email client, which stores all of your email data off your own personal computer and allows it to be accessible from any computer or Internet-capable device, anywhere in the world.

Millions of Americans also store photos or documents in “clouds”, these online data storage banks. (Amazon.com now offers 5 gigabytes of storage space on their cloud for free.)  Other users access full programs, such as spreadsheets, word processors, and even games; entirely in the “cloud.”

 

This blogpost was written entirely on a cloud-based word processing program,which was  likely invented in hopes that it will slay hard-disk only software.

 

The Pew Internet & American Life Project surveyed cloud users, and discovered that the majority of users loved the ease and convenience of the cloud; a sure-fire sign that cloud computing is far, far, from having hit its zenith.  According to Michael Nelson, the Chairman of the Technology Section of the American Association for the Advancement of Science, by the year 2020, it’s possible  that 80 percent of all computing will be done in “clouds.”  The days of desktop computers storing all of your files are riding off into the sunset.

 

Unsurprisingly, remote data storage in the cloud creates some privacy issues, which we have covered before at ACI.  But the advancement of the cloud creates serious international law issues as well.

 

If I’m storing content on my computer’s hard drive, my privacy rights may vary from state to state or country to country; but (generally) my privacy rights depend on where my hard drive is.  Pretty straightforward.

 

Welcome to the Cloud Era.  To quote an example from Microsoft: “data might be created in France using software hosted in Ireland, stored in the United States, and accessed in Singapore.”  Oh, and let’s not forget that privacy expectations inside the United States vary depending on what the content is and what state it’s being accessed in.

 

To borrow a phrase, cloud computing, privacy rights, and international law currently exist in a paradigm of uncertainty.

 

The world could use some bright-line rules.  Unsettled law scares away investors and consumers; and right now cloud computing is estimated by Gartner, Inc. to be a $150 billion industry by 2014.  And if Michael Nelson is right, the total market could end up being worth several times that.

 

As countless observers have noted, laws dealing with technologies tend to come well after the technologies have become dominant.  The world has an opportunity to get ahead of the curve on establishing uniform privacy rules for cloud computing, and accelerating economic growth by providing a new paradigm of certainty.

 

Unfortunately, there are a few obstacles in the way.

 

Paul Lanois, writing in the Northwestern Journal of Technology and Intellectual Property, reports that Europeans balk at America’s homeland security policies enacted in the Patriot Act and “fear that innocent but sensitive information might become snared in a U.S. investigation.”  Lanois quotes Informatica as claiming this concern creates a “definite no-go for many European customers.”

 

Meanwhile, the Europeans have enacted a Data Protection Directive that all EU member states must abide by, but Lanois tells us that European businesses are simply unsure  “whether the storage of customer data outside of the European Union would be a violation of the” directive.

 

These are just two snapshots of the disharmony of law that ought to change.

 

Senator Klobuchar is expected to introduce cloud legislation that seeks to protect consumer that store and share information on the web. 

 

Microsoft has promoted bilateral and multilateral agreements between the United States and other countries as a step toward certainty.  This is the best, most rational approach.  My privacy right to the content of the cloud document I write ought to be the same regardless of whether the server is ultimately in Simi Valley or Stockholm.

We live in an interconnected world, with gross world purchasing power estimated at over $74 trillion.  We are largely so interconnected because of the power of the Internet and the World Wide Web.  Cloud computing offers the chance to both make life easier and make us richer.

 

We just need the United States to take the lead on pushing for bilateral, multilateral, and (hopefully) a near-global agreement to standardize our rights to stored data in the cloud.  The world’s businesses are looking to America for leadership, and we cannot afford (literally) to let them down.

 

Zac Morgan currently attending George Mason University School of Law and is a blogger for the American Consumer Institute.

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