UK: Cloud Computing And Data Sovereignty - Blog

Last Updated: 4 November 2015
Article by Richard Kemp

The UK Investigatory Powers Bill to be published on 4 November comes at a critical time in the development of cloud computing

2 November was the second great, if less well known, British legal birthday of 2015, the 250th anniversary of Lord Camden's judgment in Entick v Carrington in 1765. 

In the timeless tussle between state surveillance powers and citizens' rights, this case concerned government attempts to stifle popular opposition voiced in pamphlets and coffee shops, the social media platforms of their day, by harrying the authors through general warrants to search and seize their papers and ransacking their homes.  Lord Camden, in ringing tones, held that:

"by the laws of England, every invasion of private property, be it ever so minute, is a trespass. ... If [a man] admits the fact, he is bound by law to show by way of justification that some positive law has empowered or excused him". 

The judge came down firmly on the side of the citizen, holding that the government agents claiming entry had failed to show proper authority and so were trespassing.

The case has been influential down the years in the UK, the USA and beyond but the principle never jumped from paper to telephone or data communications. This is because, in the UK, entry into homes to seize papers is historically based on the law of trespass, a property right, and the courts have never granted that protection to communications and data, preferring to leave that particular hot potato to the legislature.  This in turn explains why, oddly, there is no common law right to privacy under English law and why it has been left here to the Human Rights Act 1998, the Data Protection Act 1998 and the EU Charter of Fundamental Rights 2010, all comparatively recent and from Europe, to do the heavy lifting.

Meanwhile, communications, surveillance and the security agencies all emerged from behind the veil of the UK state into the open in the 1980s: the government telecoms monopoly was ended (1982) and British Telecom privatised (1984); the first statute regulating surveillance was passed (the Interception of Communications Act 1985, now the Regulation of Investigatory Powers Act 2000); GCHQ (the Government Communications Headquarters) was first avowed (1983), and the internal security service MI5 was put on a statutory footing (1989).

In June 2013, Edward Snowden revealed three large scale bulk data collection programmes – PRISM and UPSTREAM in the USA and TEMPORA in the UK.  Government had initiated these programmes between 2007 and 2011 for what they foresaw would be – and what is now – happening.  This is what has become known as the 'third platform' – the combination of:

  • big data (data volumes are increasing by 10 times every 5 years);
  • mobile (internet sensors will rise from 5bn to 2015 to 25bn by 2020);
  • social media; and
  • the move to the Cloud (think $1bn+, 100,000 server+, 1m sq ft+ hyperscale datacentres as the engine rooms of the cloud).

Snowden and the third platform provided the setting for three important European data and communications cases pitting state surveillance powers against citizens' rights.  In Digital Rights Ireland, the European Court of Justice (CJEU) in April 2014 struck down the EU Data Retention Directive, which required telcos to hold on to all customer metadata (message envelope data), as contrary to the fundamental rights of respect for private life and personal data in Articles 7 and 8 of the EU Charter.  In July 2015, the UK High Court struck down for similar reasons Section 1 DRIPA (the Data Retention and Investigatory Powers Act) 2014, which the UK government had rushed through in four days to fill the gap left by Digital Rights Ireland.  And last month, in the Schrems case, the CJEU again invoked the EU Charter's fundamental rights to strike down the US/EU safe harbour agreement on personal data transfers between the USA and EU.

All this has set the scene for the new UK Investigatory Powers Bill, to be published on 4 November. This promises to be an epic debate, with the government contending that risks from terrorism, cybercrime, data breaches, the dark net and encryption make broad investigatory powers indispensable and civil liberties groups arguing, in the longest tradition, for strict substantive and procedural safeguards.

What will all this mean for business and consumers?

The start point is a pragmatic approach to understanding data sovereignty risk management: these powers of the state have always been there, always will be.  And it's not just the USA and UK that have these laws – most countries do. This means that service providers, and hence their customers, are potentially subject to data collection and interception under many national laws including:

  • the laws of the country where the provider is headquartered;
  • the laws of the countries where the provider's data centres are located;
  • the laws of any country like the UK that claims extra-territorial interception powers;
  • the laws of any country imposing national data domiciliation requirements (like Russia, where since September personal data collected in Russia has to be stored on servers in Russia).   

On this approach, five changes to the current UK investigatory powers legal framework would see significant improvements and increased trust at this time of huge growth in the cloud:

  • first, the new statute should expressly recognise legal privilege – something which did not feature anywhere in the UK framework before this year;
  • second, greater accountability of government agencies through a higher level of judicial involvement in interception and communications data warrant authorisation and review will lead to greater legal certainty and trust;
  • third, greater transparency will allow providers to acknowledge more openly their interactions with state agencies, again increasing consumer trust;
  • fourth, better international cooperation between national agencies – the current MLAT system takes 10 months on average to process a request for emails, far too long for fast moving cyber investigations;
  • fifth, and perhaps most importantly, baking into the new law the fundamental principles and safeguards that the CJEU has said in its recent judgments are so crucial.

As the cloud becomes the new normal, and data sovereignty risks move up the corporate agenda, the data – not just the medium – is the message now.  In their important privacy rights judgments over the last 18 months, the CJEU has shown it grasps this better than anyone.  In another 250 years, will British citizens look back on their words with the same appreciation with which we look back to Lord Camden's in 1765?

If you would like to find out more about this topic, please see our October 2015 white paper on Cloud Computing and Data Sovereignty

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

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

Richard Kemp
In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.