Policy Documents

Free at What Cost

William Jeremy Robison –
January 10, 2010

The business model embraced by many cloud computing providers is incompatible with the requirements of the Stored Communications Act. A provider’s authorization to access a customer’s data, for the provision of contextual advertising or other purposes, will likely disqualify that customer from receiving the Act’s privacy protections. As a result, courts will need to carefully scrutinize a cloud provider’s terms of service agreement and privacy policy to determine the degree to which it is authorized to access customers’ data. A brief analysis of the agreements currently used by Google and several other cloud providers confirms that many users will ultimately discover they are outside the boundaries of the SCA and their data is vulnerable to disclosure.263 Although unsettling, this result is consistent with Congress’s doctrinal approach in drafting the Act to limit its protections to certain contexts. Yet, despite the growing popularity of cloud computing services, there appears to be little opportunity for judicial or legislative relief in the near future. Professor Kerr notes that “there are many problems of Internet privacy that the SCA does not address.” It appears that cloud computing is one of them...