Privacy Concerns Make Moving into the Cloud a Murky Matter

The 6th Circuit Court of Appeals just recetly released a decision that has significant bearing on the privacy of stored email (and likely other materials) at ISPs and other cloud based providers. I am no expert in this area - but it has direct implications for the many considerations for moving networks and services into the cloud. For Network World's perspective click here.

Here is some juicy background on the conviction of Berkeley Premium Nutraceuticals' Steven Warshak, and others on federal fraud charges, who were ordered to forfeit $33 million in assets, including real estate, cars and bank accounts,in connection with convictions in a jury trial of conspiracy to commit money laundering, along with other fraud charges.

The matter was appealed and the appeal was dismissed. By dismissing the suit on procedural grounds, the court left unanswered the question of whether the Fourth Amendment requires the U.S. government to obtain warrants based on reasonable cause before it can compel e-mail service providers to secretly turn over a person's e-mail records. The absence of a warrant significantly lowers the threshold for access by the government and eliminates the defendants opportunity to defend (or even be aware of the investigation).

While this may be a non-issue for the average (legally compliant) guy/gal -- this seems to be a huge issue for professionals - lawyers, accountants, doctors, etc.- with an ethical (and legal) requirement for preserving confidentially of client information and communications.

This should also be an issue for employers, especially if they might have any concern or risk that employees may be engaged in activities that could turn into a financial/legal liability or, more likely, a black eye in the court of public opinion (example: think hosting or storing unauthorized, illicit or illegal content).

This judicial decision puts lawyers,accountants and health care providers on notice that if they store email in the cloud, it can be accessed by the government without notice. This sounds like solid grounds for "malpractice per se" if a case is made against a client of a professional based on email (or other materials) stored in the cloud.

And we haven't even touched on how cloud based electronic records will be maintained, produced, etc. for federal and state e-discovery requirements. The number and complexity of issues for moving services/technology into the cloud will be murky for a long while. Most cloud vendors are betting you will miss there issues (and related costs) in making your decision to abandon your email server. This is clearly a role for the trusted IT/business adviser to get educated and help navigate their clients through these issues.