Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing

Posted on Apr 22, 2011 in Records Management News

by David A. Couil­lard
93 Minn. L. Rev. 2205 (2009)

It took nearly a cen­tury after the inven­tion of the tele­phone for the Supreme Court to rec­og­nize that the Fourth Amend­ment could be applied to the con­tent of pri­vate tele­phone con­ver­sa­tions. Today, the Inter­net is in a sim­i­lar state of limbo, with courts reluc­tant to grant Fourth Amend­ment pro­tec­tion to data placed in a medium that has been per­ceived as inher­ently pub­lic in nature. This per­cep­tion has begun to shift as Inter­net tech­nol­ogy becomes faster, more wide­spread, and more mobile. “Cloud com­put­ing” is the trendy phrase used to describe this change. Rather than merely a medium of mass com­mu­ni­ca­tion, the ethe­real Inter­net “cloud” is now used as a vir­tual plat­form for stor­ing and inter­act­ing with data that are intended to remain pri­vate yet acces­si­ble any­where. Although some courts have recently rec­og­nized lim­ited pro­tec­tion for e-mails and text mes­sages, these nar­row hold­ings are not uni­ver­sal. The third-party doc­trine fur­ther com­pli­cates the issue when con­tent and quasi-transactional data are being stored by cloud ser­vice providers.

This Note argues that because the Inter­net has evolved to allow new uses, data placed in the cloud merit some level of Fourth Amend­ment pri­vacy pro­tec­tion. Fourth Amend­ment pro­tec­tion requires a sub­jec­tively rea­son­able expec­ta­tion of pri­vacy. Because lim­ited means exist to con­ceal vir­tual con­tain­ers in the cloud, meth­ods such as encryp­tion and pass­word pro­tec­tion should be analo­gized to vir­tual opac­ity rather than the lock-and-key anal­ogy that has been dis­missed by some schol­ars. Finally, courts should acknowl­edge the landlord-tenant nature of the rela­tion­ship between the cloud ser­vice provider and the user, and thus the use of cloud plat­forms should not cre­ate a cat­e­gor­i­cal waiver of Fourth Amend­ment pro­tec­tion under the third-party doctrine.

Pub­lished in Min­nesota Law Review, June 2009, Vol­ume 93, No. 6

http://www.minnesotalawreview.org/content/note-defogging-cloud-applying-fourth-amendment-principles-evolving-privacy-expectations-clou

Com­pli­ments of File­Man Research