Cloud Computing: Business Benefits, Legal Uncertainties, Risks and Strategies

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1 BEIJING BRUSSELS CHICAGO DALLAS FRANKFURT GENEVA HONG KONG LONDON LOS ANGELES NEW YORK PALO ALTO SAN FRANCISCO SHANGHAI SINGAPORE SYDNEY TOKYO WASHINGTON, D.C. Cloud Computing: Business Benefits, Legal Uncertainties, Risks and Strategies Alan Charles Raul William R.M. Long November 2011

2 NIST Definition Cloud computing is a model for enabling ubiquitous, convenient on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction. But is it... IT Utopia? or Information Governance Hades? 2

3 Transform Your Business with the Cloud KPMG and Forbes just published their 2011 survey of 900 executives and IT directors from businesses with over $200M revenues in 15 countries; businesses are true believers in the Cloud: Save money and facilitate new revenue Break down supply chain barriers Transform: HR, CRM, IT The Cloud entails shift of computing power from an internal capital investment to an outsourced service provided for a fee determined by metered usage, resources utilized and degree of customization Requires astute new mechanisms for information governance: legal/regulatory compliance, risk management, and internal controls 3

4 Cloud Issues and Risks - Overview The Cloud offers efficiency, flexibility and innovation benefits for businesses, consumers, economic growth Outsourcing to experts can offer greater technical expertise and security Cloud Law is relevant to anyone with lots of data Threats to efficient Cloud deployment include: Balkanization of the Cloud; EU concerns over Patriot Act, civil discovery, privacy, protectionism? Existing Cloud regulatory standards are a bit of a mess Potential government access warrants advance planning Privacy, security, international data transfer issues, tax, export controls, service level needs require due diligence, compliance protocols, and careful contracting 4

5 5 Next 12 months adoption

6 Cloud Evangelist Vivek Kundra (Former White House CIO) Cloud computing will disrupt and reshape entire industries in unforeseen ways Wasteful spending will be punished, while... Embrac[ing] the cloud will be rewarded with substantial savings. Cloud computing can be more secure because Cloud providers can specialize in high level of cyber-security NOTE: Employees use cloud services like Dropbox and Gmail in their personal lives so not developing a corporate Cloud strategy risks creation of shadow IT resources that makes organizations more vulnerable Cloud First is the current US Government strategy: $20 billion of the Federal Government s $80 billion in IT spending is a potential target for migration to cloud computing solutions. 6

7 PATRIOT Act and Other Concerns About Moving Data to the Cloud USA PATRIOT Act is the European shibboleth for voracious US government access to personal information Patriot Act authorizes access to any business record with a court ode order Somewhat expands the government s ability to obtain records pursuant to a National Security Letter FISA, NSLs, ECPA authorize government interception and access to electronic communications for anti-terrorism, counter-terrorism and law enforcement Data in the Cloud is also subject to US civil discovery Discovery access to Cloud is not yet a significant, controversial issue Some potential loss of control over response to information requests is inevitable for Cloud data Statutes and case law may mitigate exposure 7

8 Threat of Balkanizing the Cloud: Conflict of Privacy Laws? Europe p worries about US access to information in the Cloud without notice to data subjects Concern that the PATRIOT Act effectively overrules the EU Directive on Data Protection Directive The Netherlands has banned US Cloud providers from government IT contracts because of the Patriot Act (9/19/11) data t from Dutch citizens that t is managed by the government should exclusively be stored within Dutch borders using Dutch companies UK s Liberal Party: cloud computing is an area where...there is serious potential for abuse large corporations taking control of enormous quantities of public or private data outside the reach of national law... Even British Columbia has banned a US Cloud provider due to PATRIOT Act concerns 8

9 Beginning g of a Digital Trade War? Bloomberg (9/13/11): Deutsche Telekom Wants German Cloud to Shield Data From U.S. Deutsche Telekom AG's T-Systems is pushing regulators to introduce a certificate for German or European cloud operators The Americans say that no matter what happens I'll release the data to the government if I'm forced to do so, from anywhere in the world That's why we're well-positioned if we can say we're a European provider in a European legal sphere and no American can get to them. A German cloud would be a safe cloud 9

10 PATRIOT ACT Risks Are Exaggerated US and European governments have similar approaches to balancing privacy, national security and law enforcement: EU Data Protection Directive specifically exempts national security from otherwise applicable privacy protections EU Treaty of Lisbon expressly allows member countries to limit personal privacy where necessary for national security purposes Specific European countries carve out personal data privacy protections for national security or law enforcement activities Google statistics demonstrate that EU governments also seek and obtain Cloud data of Google users 10

11 Cloud Law Information governance is a growing mélange of US and international legal regimes like EU Data Protection Directive US Electronic Communications Privacy Act prohibits interception and unauthorized access to communications and stored data Note: Cloud providers may be considered remote computing services subject to specific restrictions on disclosure of customer data Computer Fraud and Abuse Act prohibits hacking and unauthorized access Data security standards (including due diligence for outsourcing) and data breach notification required by: 11 Gramm-Leach-Bliley (financial information) HIPAA (medical information) Communications Act (customer proprietary network information) State laws (sensitive personal information) (e.g., Massachusetts) FTC enforcement (prohibits unfair and deceptive acts) SOX for financial systems; SEC for risks and contingencies

12 Global Legal Quagmire Microsoft Privacy and Data Access in a World of Online Computing: A Call To Action (Jan. 2011): Growing thicket of inconsistent, national legal requirements Competing claims of jurisdiction over user content Divergent rules on: data privacy data retention law enforcement access censorship national security This global legal quagmire jeopardizes long-term investment and innovation in cloud computing. If companies are forced to store data locally to mitigate these jurisdictional conflicts, the costs... will increase, many of the efficiency and performance gains of cloud computing may be lost, and the benefits to users will be reduced. 12

13 Growing European Support for the Cloud EU Justice Commissioner Viviane Reding: Consumers and companies benefit from storing information on remote servers Companies cut costs by outsourcing data storage tasks. EU should promote: a cloud-friendly environment clear and strong data protection simpler, harmonised measures and regulatory certainty Companies must know what the rules are about the flow of data within the EU and at a global level. EU Digital Agenda Commissioner Neelie Kroes: Because the Cloud is by definition a global issue, Europe should work with the U.S. and Asia in setting policy. Even France now wants to be realistic and pragmatic about applying French law to outsourcing in the Cloud 13

14 Legal Issues and Risks in the Cloud Data security and compliance with legal and regulatory obligations What corporate data and processing functions are being migrated to the Cloud? What legal jurisdictions could assert authority over the Cloud data? Privacy, security and confidentiality exposure: Hacking, intrusion, access, usage, disclosure and disposition problems Inconsistent data breach notification practices Information requests from governments, litigants, others Inter-mingling of data in shared environment Loss of control; less transparency; diminished accountability Assuring compliance with security demanded by business partners Impacts on internal controls Cross-border data transfers implicate EU Privacy Directive Export control issues may apply and tax impacts 14

15 Corporate Strategies Take stock of where in the world your data are and who is protecting them and how: Conduct data inventory and track flows across jurisdictions and service providers for: Personal information and HR data IP, trade secrets, and other valuable information assets Engage in careful contracting: preserve control, reduce risk of disclosure, assign security obligations and enforcement costs Address required service levels and provide for continuity during outages Deny consent to interception or disclosure of data conveyed by/through Cloud provider to governments or litigants Constrain ability of Cloud provider to access/use data other than as expressly contemplated for the services being provided Expressly require maximum advance notice and maximum possible legal resistance to compelled disclosure to third parties Require notification of any breach/disclosures/requests for data Stipulate access controls and encryption protocols 15

16 Corporate Strategies cont d Conduct due diligence of potential Cloud providers: Consult NIST, EU, GLBA, FFIEC, FINRA, HIPAA, MA standards for secure outsourcing Promote interoperability of Cloud standards to ensure maximum efficiency benefits Avoid being locked-in to specific/proprietary technology Plan for outages and assuring business continuity Anticipate legal responsibility: Data protection and data breach reporting Government access for: Law enforcement National security Regulatory compliance Data retention obligations Responding to e-discovery requests E t bli h i f ti d t b t f US Establish information governance program and stay abreast of US and international Cloud law 16

17 World Offices BEIJING Suite 608, Tower C2 Oriental Plaza No. 1 East Chang An Avenue Dong Cheng District Beijing China T: F: BRUSSELS NEO Building Rue Montoyer 51 Montoyerstraat B-1000 Brussels Belgium T: F: CHICAGO One South Dearborn Chicago, Illinois T: F: FRANKFURT Taunusanlage Frankfurt am Main Germany T: F: GENEVA Rue de Lausanne 139 Sixth Floor 1202 Geneva Switzerland T: F: HONG KONG Level 39 Two Int l Finance Centre 8 Finance Street Central, Hong Kong T: F: DALLAS LONDON 717 North Harwood Woolgate Exchange Suite Basinghall Street Dallas, Texas London, EC2V 5HA T: United Kingdom F: T: F: LOS ANGELES 555 West Fifth Street Los Angeles, California T: F: NEW YORK 787 Seventh Avenue New York, New York T: F: PALO ALTO 1001 Page Mill Road Building 1 Palo Alto, California T: F: SAN FRANCISCO 555 California Street San Francisco, California T: F: SHANGHAI Suite 1901 Shui On Plaza 333 Middle Huai Hai Road Shanghai China T: F: SINGAPORE 6 Battery Road Suite Singapore T: F: SYDNEY Level 10, 7 Macquarie Place Sydney NSW 2000 Australia T: F: TOKYO Sidley Austin Nishikawa Foreign Law Joint Enterprise Marunouchi Building 23F 4-1, Marunouchi 2-chome Chiyoda-Ku, Tokyo Japan T: F: WASHINGTON, D.C K Street N.W. Washington, D.C T: F: Sidley Austin LLP, a Delaware limited liability partnership which operates at the firm s offices other than Chicago, London, Hong Kong, Singapore and Sydney, is affiliated with other partnerships, including Sidley Austin LLP, an Illinois limited liability partnership (Chicago); Sidley Austin LLP, a separate Delaware limited liability partnership (London); Sidley Austin LLP, a separate Delaware limited liability partnership (Singapore); Sidley Austin, a New York general partnership (Hong Kong); Sidley Austin, a Delaware general partnership of registered foreign lawyers restricted to practicing foreign law (Sydney); and Sidley Austin Nishikawa Foreign Law Joint Enterprise (Tokyo). The affiliated partnerships are referred to herein collectively as Sidley Austin, Sidley, or the firm.

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