The Cyberspace Law and Policy Centre at the University of New South Wales' Faculty of Law yesterday launched the whitepaper Data Sovereignty and the Cloud: A Board and Executive Officer's Guide, an easy-to-read document intended to help organisations start to address the increasingly complex legal issues around cloud computing.
Here is an overview of the key issues discussed in the whitepaper, as written by UNSW:
1. Thou must be aware that information stored in a cloud environment can conceivably be subject to more than one nation's laws.
2. Thou must remember that the onus is on the business (i.e. the cloud customer) to ensure that the cloud provider used complies with local laws — local being where the cloud provider, and or the data, is being stored.
3. Thou must remember, by nature a cloud computing environment invites international considerations — many from the US. The 4th Amendment to the US Constitution may offer some protection for US citizens, but does not necessarily hinder government search or seizure of anyone's data without a specific warrant. Australians can't easily rely on the US 4th Amendment, and we also lack any local constitutional Bill of Rights.
4. Thou shalt check whether your cloud service provider has extended its insurance policy so that it also includes cover for your data; not all clouds are created equal.
5. Thou must acknowledge it is not the application, but the data which needs to be profiled and classified so a policy can automate its residence within a hybrid cloud.
6. Thou shalt investigate and formulate criteria that determine what information, if any, should be housed in Australia or exclusively under Australian control. Certain categories of documents may require special treatment by law (e.g. health records), while others may need special treatment for business or legal reasons.
7. Thou shalt investigate whether "personal information" really needs to be stored in identifiable form, since permanent de-identification can mean privacy rules no longer apply. But beware of potential re-identification: if the original identity can still be "reasonably ascertained", all bets are off.
8. Thou should know the US has entered into mutual legal assistance treaties with over 50 countries. This means information is readily shared amongst signatories. It also includes invitation to spontaneously offer data to a foreign State.
9. Thou must be aware a foreign owned vendor may be subject to their country's laws, even if they operate in Australia. If the vendor is subpoenaed by a foreign law enforcement agency for access to data belonging to the vendor's customer, the vendor may be legally prohibited from notifying their customer of said subpoena.