Cloud computing and location of data

Disclaimer: I'm not a lawyer so this is not legal advice, and these views do not represent my employer's views either.

One of the big elephants in the room with cloud computing is the location of data. People are naturally worried about whether their data is accessible by others or not. Some providers will tell you the location of the data, some will not. There are also the issues of the Patriot Act and safe harbour when interaction with technology providers across the Atlantic.

The Patriot Act requires a US based corporation to hand over data to the government and they do not have to disclose it to the end customer either if they are service provider. As far as I can understand you are not protected any further even if the data is in the EU or another region. The defining requirement is whether they are a US based company.

One thing that is mentioned often is safe harbour. Basically what safe harbour means is that the US based provider will adhere to the same standards as the EU requires. This is because US data protection is basically non-existent. The safe harbour provisions does NOT mean your data will reside in the EU, it just means that it will be protected to the same standard as the EU.

Of course none of this matters if you work for a global corporation headquartered in the USA anyway as then you are required to hand data over to the government if requested under the Patriot Act as I read it. The difference is, whether you know whether the government is accessing your data. The government could request your data from you, but may not need to if they go to your cloud supplier who is also a US based corporation.

It is common sense that if you have sensitive data that you encrypt it, whether you store it in the cloud or on premises. This is especially important for data such as customer or employee data that would cause damage - either real financial loss or damage to reputation.

I believe that there will be a rise in cloud encryption services e.g. GPG type plugins for Gmail. Already Amazon has a service for S3 called Server-Side Encryption. With this service you give your private keys to Amazon to seamlessly encrypt/decrypt data on the fly. However what this means is that Amazon could give your encrypted data to the US government without your knowledge even the Patriot Act. As such in my mind the only reason that anybody would use this would be for low value data and I would not consider an encryption service for email where the vendor controls the private keys.

One aspect that people do often overlook is not so much government regulations, but their own rules. What do your customer policies say, and what do your own staff policies say. For example your HR policy may say that all personnel data will be stored in UK, or your customer terms and conditions might say that all data will be stored in the EU. Many cloud services might not be based in the EU and there are very, very few in the UK. There can also be obscure regulations specific to your industry e.g. in a previous role the code master had to be in the UK as cryptographic code was considered a weapon and needed an export license.

It should be noted that complying with privacy regulations by storing data in the EU does not mean that it cannot be taken under the Patriot Act. In these cases it is assumed that the US Government is the evil one, but I have no less reason to suspect that the UK or any other government is any less nefarious.

My conclusion is that it is safe to store data in the cloud if a company adheres to safe harbour, and is probably better than most companies own data protection. If however you are worried about your data falling into government hands then you need to look into it very carefully. The only really safe way to protect your data from governments is to encrypt your data in the cloud with your own encryption keys.

Useful reference articles:
ZDNet Article: How the USA Patriot Act can be used to access EU data
Wikipedia article on the Patriot Act
Wikipedia article on safe harbor
Ars Technica article on Patriot Act and cloud providers


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