The Cloud & the Fourth Amendment

The Fourth Amendment to the US Constitution, part of the Bill of Rights, guards against unreasonable searches and seizures. Basically, it says that law enforcement needs a court-ordered warrant – provided there’s probably cause – to make a search. Today, one of the biggest questions for enterprises considering moving data to the cloud is, under the Fourth Amendment, what kind of data protection they’re entitled to when in the hands of a third party.

Now, however, there’s a new legal opinion of the application of the Fourth to the cloud. cnet has taken a look and reports that it’s not only right on the mark but that the courts sorely need to adopt it in deciding cases arising from cloud data privacy issues.

The paper is written by David A. Couillard, a student at the University of Minnesota Law School, and it is published in the June 2009 issue of the Minnesota Law Review.

The story reports that Couillard points out that both the security and opacity of a container used to store something determine the “reasonable expectation of privacy” test. He theorizes that even if the police or some other government body comes across a locked briefcase, they have a right to try and guess its combination until they opened it. However, its opacity – designed to keep its contents private – means its owner had a reasonable expectation for it to remain private.

So, are you still with me? And are you wondering how this applies to the cloud?

Couillard says: “In the context of virtual containers in the cloud…encryption is not simply a virtual lock and key; it is virtual opacity.” So, by signing up with a cloud provider to store your data, you’re guaranteed privacy, right?

Er; not so fast.  We still need a legal framework – like the Constitution itself – to protect data on the cloud and any other Internet service.  Couillard suggests we treat digital cloud data as we would the locked contents of a briefcase or an apartment:

” [T]he service provider has a copy of the keys to a user’s cloud storage unit, much like a landlord or storage locker owner has keys to a tenant’s space, a bank has the keys to a safe deposit box, and a postal carrier has the keys to a mailbox,” he writes. “Yet that does not give law enforcement the authority to use those third parties as a means to enter a private space.

“The same rationale should apply to the cloud. In some circumstances, such as search engine queries, the third party is clearly an interested party to the communication,” Couillard continues. “But when content data, passwords, or URLs are maintained by a service provider in a relationship more akin to that of landlord-tenant, such as private Google accounts, any such data that the provider is not directly interested in should not be understood to be open to search via consent or a waiver of Fourth Amendment protection.”

Cnet blogger James Urquhart, after having read the paper on this crucial Fourth Amendment issue for cloud services, calls for the courts to begin applying its reasoning to Internet-based computing cases “immediately,” and calls on Congress, too, to create laws on the data rights of users.

I agree completely.

Working with companies and IT managers daily to provide them with protection in the way of cloud monitoring services, I know their concerns. Data privacy is one of them. And legislation and court decisions will go a long way to providing assurances and confidence in the cloud.

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