Canada: Cybersecurity Considerations When Moving To The Cloud – Part 2

Last Updated: March 26 2018
Article by Imran Ahmad and Konstantin Starostin

This Article is Part Two of a Two-Part Series

Part One provides an overview of the essential elements of the cloud computing ecosystem and describes what it means to be in the cloud. It concludes by setting out the first few key cybersecurity considerations unique to cloud computing and the legal approaches that have been developed to address them. Part Two continues this discussion.

Managing Cybersecurity Risk in the Cloud – Part 2

In addition to the cybersecurity issues related to Data Security and the Location of Data previously discussed, other key considerations when migrating to the cloud include Privacy and Regulatory, Service Failures and Loss of Control over information.

  1. Privacy and Regulatory Considerations. Data uploaded to the cloud is vulnerable to more than data breaches. Any organization sending or processing personal information in a cloud computing environment must comply with privacy law requirements under the Personal Information Protection and Electronic Documents Act (PIPEDA)1 and applicable provincial legislation. As may often be the case in client contracts, data collected for a specific purpose is to be used only for that particular purpose; accordingly, organizations need to exercise caution when uploading their clients' data to the cloud, need to obtain appropriate consents to do so, and look to limit the possibility that, or how, such data will be processed.

    We further note that with the European Union's General Data Protection Regulation ("GDPR") coming into force in May 2018, Canadian organizations will also need to consider compliance with the GDPR as part of their broader privacy and regulatory compliance strategy.

    Contractual Approach:

    Contracts with cloud providers should specifically restrict access to and use of personal information, identify applicable privacy legislation and regulations, and clearly set out processes and procedures in the event of a breach requiring notification or reporting. Consumers need to seek protections that ensure data is returned or securely destroyed when no longer necessary for the specified purposes and that the obligations of the provider in respect thereof flow down to their subcontractors or third party vendors. Although not yet in force, the Breach of Security Safeguards Regulations set out detailed notification requirements in the event of a security breach. Providers who are unfamiliar with these requirements may find themselves and, in turn, their consumers, exposed to regulatory scrutiny and fines. Carefully crafted language setting out the response timeline and responsibilities of the parties in the event of a breach will assist in mitigating this risk.

  2. Service Failure Interruption. Service level agreements with cloud providers must be detailed enough to provide the consumer with an understanding of what to expect when something—inevitably—goes wrong. Unfortunately, these often take the form of only minimal service level assurances. To the extent possible, they should at a minimum provide information as to the uptime, process and timing associated with correcting service failure interruptions, along with the method of notification and follow-up that the customer can expect to receive.

    Contractual Approach:

    Regardless of an organization's bargaining power in negotiating a service level agreement, special attention must be given to circumstances which would cause a material service disruption, suspension or termination. Well-drafted agreements will clearly define what constitutes an emergency security issue or failure that results in a suspension or termination and, to the extent possible, provide advance notice accompanied by an opportunity to cure the deficiency. Absent these considerations, the ultimate risk to an organization is that their entire cloud-connected business unexpectedly becomes paralyzed with little or no warning. The costs of such a disruption could be significant and are not typically covered in the indemnity provisions of the cloud services agreement.

  3. Loss of Control. One further issue that may arise concerns the loss of control that an organization has over its information in the cloud. Consumers will invariably take on increased enterprise risk as the provision of services, processors, sub-processors and third parties grows. The inability to control where, how and by whom their data is handled opens the door for a host of unforeseen issues.

    Contractual Approach:

    While it is unlikely—and indeed often undesirable—to limit the involvement of subcontractors and third party vendors of the cloud provider, consumers can take proactive steps by specifying information that is to be expressly carved out from the processing or administration processes that apply to the uploaded data generally. At a minimum, special attention must be drawn to highly confidential information and information governed under PIPEDA or applicable privacy legislation.

Conclusion

While the move to the cloud is an attractive opportunity for organizations to reduce their information technology infrastructure cost, it also brings with it certain risks. Managing those risks will often be specific to each organization, depending on the type of data they intend to move to the cloud, the size of their organization and the industry in which it operates. Nevertheless, steps can be taken to mitigate these risks through contractual means with cloud service providers.

Finally, the increased sophistication of hackers, growth of artificial intelligence, development of quantum computers and the expansion of the "Internet-of-Things" will all contribute to the way we interact with information and data on a daily basis. Cybersecurity concerns will continue to be at the forefront of the cloud computing revolution. Businesses and individuals who are well-apprised of, and counselled on, the evolving risks stemming from this growth in interconnectivity will be best-placed to navigate the next technological wave.

Footnotes

1 PIPEDA regulates personal information in the private sector and federal works, undertakings and businesses. PIPEDA also applies to personal information that flows across borders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Imran Ahmad
Similar Articles
Relevancy Powered by MondaqAI
Collins Barrow National Incorporated
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Collins Barrow National Incorporated
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions