United States: They Really Don’t Know Clouds At All

Last Updated: February 18 2013
Article by Stewart A. Baker

Every new computing technology seems to bring with it a privacy flap. Right now, cloud computing is going through that phase, at least outside the US. Canadian and European elites fear that putting data in the cloud will somehow let the US government paw through it at will, a fear that usually centers on Section 215 of the USA PATRIOT Act.

The debate has been fed by interest groups worried about their future in a world of cloud computing. It was first raised as part of a campaign by the British Columbia Government Employees Union against the outsourcing of British Columbia’s health insurance data processing. (Full disclosure: I worked on the issue for clients both at the time and more recently.)

After years of remission, the issue has recently returned even more virulently, when Europe’s small cloud providers began using the Patriot Act as a marketing tool. In November of 2011, two European companies announced the creation of a European cloud offering that they advertised as providing a “safe haven from the reaches of the U.S. Patriot Act” in a press release that goes on to say, “Under the Patriot Act, data from EU users of U.S.-owned cloud-based services can currently be shared with U.S. law enforcement agencies without the need to tell the user.”

This is a pretty clear reference to section 215 of the Patriot Act, which once allowed the FBI to “gag” recipients of 215 orders. (That authority was substantially cut back by Congress in 2005; now recipients may challenge gag orders in court annually until they are revoked. See 50 USC 1861(f)(2)(A).)

As a competitive strategy, this line of attack has some problems. It assumes that, while US-owned companies can be compelled to produce data from around the world, European companies can safely refuse to comply. The argument that the US can compel global compliance is grounded in a line of cases ordering banks to produce records from foreign branches. Unfortunately for the European companies making this pitch, the line of cases is named after the unsuccessful party – the Bank of, uh, Nova Scotia– which is rather plainly not a US company and thus hardly the best case to cite if you’re arguing that people can defeat American discovery orders by giving their records to companies headquartered outside the US.

Nonetheless, the argument is still shaking up customers and officials in Europe, who are understandably not comforted by the response that even European cloud companies can be compelled to produce records. I think for several reasons that this risk has been severely hyped – there are only a couple of hundred section 215 orders a year, compared to tens of thousands of criminal subpoenas, and the Justice Department discourages foreign fishing expeditions. But those reasons have been discussed by others. Instead of digging into them, I’d like to explore a point that hasn’t been discussed as widely: the utter uselessness of serving a section 215 order on a cloud computing company.

In essence, it seems pretty clear to me that section 215, entitled “Access to certain business records,” is designed to collect a company’s business records. And a company’s business records are ordinarily viewed as the records the company uses to conduct business, not information belonging to the company’s customers.

Why does this matter for European privacy buffs? Because the records that cloud companies need to conduct business are very different from the records kept by the Bank of Nova Scotia. Banks must keep track of how much money you move in and out of your account, since that determines how much interest they owe you, how much they can charge for wire transfers and bounced checks, and so on.

Put another way, your transactions are part of the bank’s business records. But the records you store on cloud computing platforms aren’t part of the cloud company’s business records, because that’s not how they measure their costs and revenues, among other reasons.

Judging by this calculation, the data that cloud computing companies need to send out their bills is a lot less interesting. They need to keep records of how many CPUs the customer rented, for how many hours, with how much storage space (RAM and disk), on how fast a network. Last I looked, that is information that I already tell the world about my own computer when I visit any site on the Internet.

If that’s all the US government can get by serving a 215 order on cloud companies, it’s no wonder that we haven’t actually seen or heard of such an order in real life.

So, am I right? The best argument against this conclusion is that the title of section 215 doesn’t really tell you what the government can demand. Although the title speaks of “access to business records,” the body of the provision allows the court to order “the production of any tangible things (including books, records, papers, documents, and other items).” That sounds pretty broad, but also pretty familiar. Under the federal rules of criminal procedure, a federal grand jury “subpoena may order the witness to produce any books, papers, documents, data, or other objects.” But as broad language as this language is, the government doesn’t ordinarily use grand jury subpoenas to order people to produce things that belong to other parties. That practice is prudent, given that some courts, notably the Sixth Circuit in Warshak v. United States, think the fourth amendment requires use of a warrant, and the Congressional authorizations for administrative subpoenas require notice to the target.

The link between section 215 and criminal investigative practice is firmed up by a sentence added to section 215 when it was renewed in 2005. The new sentence says, in essence, that section 215 can only “only require the production of a tangible thing if such thing can be obtained with a [grand jury] subpoena.” See 50 U.S.C. § 1861(c)(2)(D).

It seems to me that this puts a special new burden on the Europeans who think that section 215 is a problem for American cloud providers. When it was the spooky, subterranean, and evil Patriot Act they were construing, they could plausibly say, “Who knows what the government is doing behind those gag orders in that secret court?” But now that the tie between 215 and grand jury subpoenas has been clearly written into the statute, there is no dearth of information about US practice. We have fifty years or more of criminal procedure, and tens of thousands of criminal subpoenas a year, to draw upon. If grand jury subpoenas have been used to obtain third-party records across international boundaries, especially from cloud providers, then the European merchants of FUD have a point. If not, they can safely be ignored, by customers and policymakers alike.

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
 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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