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Cloud Computing and the Fourth Amendment

Posted by KL Tech Muse at 4:30 PM on March 31, 2010

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized, Amendment IV, US Consitution.

Anyone who watches American cop shows, knows that, before they search your house or business they have to have a warrant signed by a Judge. What about documents that are stored in the cloud or on a smartphone do they have the same protection. Maybe yes or maybe no, the law is not clear. The law covering this issue was written in 1986. It is called the Electronice Communications Privacy Act. In 1986, the Internet as we know it today did not exist , email was in its infancy and smart phones were in the realm of science fiction.

Today people store their papers and effects online and on their cellphones. Do these documents have the same protection from government search and seizures as those in our homes, business or on our persons. The problem is according to what I have read, the law is not clear. Different cases have led to different decisions and a mishmash of laws across the country. Several companies and agencies have joined together, to bring the 1986 law into the 21st century. These companies and agencies include, The Electronic Freedom Foundation, the ACLU, Google, Microsoft, AT&T and others, According to the article in ArsTechnica some of the updates they want included are

• All “private content” held by a service provider should be protected by the same standard as material on your laptop: a warrant must be obtained. Currently, the rules are murky and confusing; the government can go after server e-mail older than 180 days, for instance, with only a subpoena (no judge needed), while more recent e-mail needs a warrant.
• Warrants must be sought to access location information. Currently, says the CDT, GPS data is protected by warrant, but other data (such as that from cell phones) is not. Courts have been “all over the ballpark” on this issue.
• For “transactional” data (i.e., data that might include e-mail headers but not message content), the coalition says that a judge should be involved, though a warrant may not be needed.
• Subpoenas should only be used where government has a particular person whose data they seek; they shouldn’t be used for bulk requests on many subscribers at once without a court order.

Shouldn’t documents that are stored in the cloud have the same protection as those documents in your home. How about wireless conversations, shouldn’t they be protected like conversations over a landline phone. I think so, the documents and conversations are private and the government has no right to search or seize them without a warrant. Now those on the other side will tell you that the government needs the power to seize documents without a warrant in its fight against terrorism. I reject this argument, except in extreme emergencies. All papers and effects should have the same protection whether online or offline. A national law would protect both individuals against the government and provide businesses with clear guidelines to follow. Cloud computing is here to stay and our laws need to catch up.

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