Cloud Computing: the Next Great Technological Innovation, the Death of Online Privacy, or Both?

• Publication year: 2010

Georgia State University Law Review

Volume 28 j ^

Issue 2 Winter 2012

3-14-2012

Cloud Computing: The Next Great Technological Innovation, the Death of Online Privacy, Or Both?

Derek Constantine

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Recommended Citation

Constantine, Derek (2011) "Cloud Computing: The Next Great Technological Innovation, the Death of Online Privacy, Or Both?," Georgia State University Law Review: Vol. 28: Iss. 2, Article 6. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss2/6

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CLOUD COMPUTING: THE NEXT GREAT TECHNOLOGICAL INNOVATION, THE DEATH OF ONLINE PRIVACY, OR BOTH?

Derek Constantine

Introduction

Google Docs¹ is a service used by individuals and, in its Google Apps² form, by businesses and educators.³ Google Docs allows a user to log on to his Google account on any computer and create text documents, spreadsheets, and a variety of other documents while saving everything remotely—allowing that same user to log off one computer, log on to another computer, and continue to work on the same document.⁴ Additionally, multiple users can access and edit the same document in Google Docs at the same time to facilitate collaborative work.⁵ The use of Google Docs is increasing, with Google claiming to have over two million users.⁶ Google Docs is a form of what is generically referred to as cloud computing—online services that provide "the ability to run applications and store data on a service provider's computers over the Internet, rather than on a person's desktop computer."⁷ With the growth of online storage and

J.D./M.B.A. Candidate, 2013, Georgia State University College of Law. Thanks to Professor Russell Covey and everyone involved with the Georgia State Law Review for their valuable feedback and suggestions, and thanks to my wife Sarah for her love and encouragement.

1. Docs, Google, http://docs.google.com/ (last visited May 26, 2011).

2. Apps for Business, Google, http://www.google.com/apps/ (last visited May 26, 2011).

3. See generally About Google Apps, Google, http://docs.google.com/support/bin/answer.py?hl=en-uk&answer=60982 (last visited May 26, 2011) (detailing the differences between Apps and Docs).

4. Online, Free Spreadsheets from Google, Google, http://www.google.com/google-d-s/spreadsheets/ (last visited May 26, 2011) [hereinafter Free Spreadsheets]; Online, Free Word Processing with Google Documents, Google, http://www.google.com/google-d-s/documents/ (last visited May 26, 2011) [hereinafter Free Word Processing]; What's New in Google Docs?, Google, http://www.google.com/google-d-s/whatsnew.html (last visited May 26, 2011).

5 . What's New in Google Docs?, supra note 4.

6. Office Politics: Microsoft Bids to Keep Its Grip on Corporate Computing Against Google's Challenge, Economist (May 13, 2010), http://www.economist.com/node/16113333.

7. William Jeremy Robison, Free at What Cost?: Cloud Computing Privacy Under the Stored Communications Act, 98 Geo. L.J. 1195, 1199 (2010).

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computing services by companies such as Microsoft and Google,⁸ now more than ever any person with a basic computer and an Internet connection can store files remotely,⁹ borrow processing capabilities,¹⁰ write documents,¹¹ work on spreadsheets,¹² or create presentations¹³—all through convenient, simple, and often free online services.¹⁴ Given the low cost and ease of use, cloud computing seems like an attractive option to consumers who are cost-conscious but still want the newest software and services.¹⁵ And yet, despite the optimism around cloud computing, many businesses and individuals have been slow to adopt the new services.¹⁶ Companies and individuals have expressed concerns about privacy—including concerns about the government's apparent ability to search and seize files stored in the cloud without Fourth Amendment restraint—as a major reason for the lack of cloud computing adoption.¹⁷

8. Brad Stone & Ashlee Vance, "Cloud" Computing Casts a Spell, N.Y. Times, Apr. 19, 2010, at B1 ("[C]loud providers are trying to bring these [cloud] services to the more conservative and lucrative world of large corporations."); Clash of the Clouds: The Launch of Windows 7 Marks the End of an Era in Computing—and the Beginning of an Epic Battle Between Microsoft, Google, Apple and Others, Economist, Oct. 17, 2009, at 80, available at http://www.economist.com/node/14637206.

9. MobileMe, Apple, http://www.apple.com/mobileme/ (last visited May 26, 2011) (on file with Georgia State University Law Review). MobileMe service is now closed to new subscribers and will transition to Apple iCloud, which provides similar services. ICloud, Apple, http://www.apple.com/icloud/ (last visited Oct. 19, 2011).

10. Amazon Elastic Compute Cloud (Amazon EC2), Amazon.com, http://aws.amazon.com/ec2/ (last visited May 26, 2011); Amazon Web Services: Terms of Use, Amazon.com, http://aws.amazon.com/terms/ (last visited May 26, 2011). See generally Clouds Under the Hammer: Processing Capacity is Becoming a Tradable Commodity, Economist, Mar. 11, 2010, at 69 (discussing the evolution of the commoditization of processing power).

11 . Free Word Processing, supra note 4.

12. Free Spreadsheets, supra note 4.

13. Free, Embeddable Presentations from Google, Google, http://www.google.com/google-d-s/presentations/ (last visited May 26, 2011).

14. Docs, supra note 1 ("It's easy to get started and it's free!").

15 . Battle of the Clouds: The Fight to Dominate Cloud Computing Will Increase Competition and Innovation, Economist, Oct. 15, 2009, at 16, available at http://www.economist.com/node/14644393; Stone & Vance, supra note 8, at B1 ("In Amazon's model, businesses pay only for the computing cycles they use. Customers eliminate the upfront cost of computer hardware and can then buy more time on Amazon's data center as needed."). See generally Thomas L. Friedman, Hot, Flat, and Crowded: Why We Need a Green Revolution—and How It Can Renew America 232-33 (2008) (describing vision for the "job of the future" in which the individual will stay home and log onto her company's system where she will access her files, run programs, and perform her job entirely remotely).

16. Cloudy with a Chance of Rain: Few Companies Are Ready to Accept Cloud Computing, Economist (Mar. 5, 2010), http://www.economist.com/node/15640793.

17. Id.; see discussion infra Part I.A.; see also Stone & Vance, supra note 8, at B1 ("[Companies] fear that their confidential information could be vulnerable on another company's system, out of their

2012] CLOUD COMPUTING 501

A close examination of the terms of the service agreement that apply to Google's services may surprise some users.¹⁸ Google acknowledges that users retain any "copyright and any other rights [users] already hold in Content which [users] submit, post or display on or through" its services. It further states, however, that "[b]y submitting, posting or displaying the content [users] give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which [users] submit, post or display on or through" Google's services.¹⁹ Considering the expansive nature of the terms of Google's general service agreement and assuming consumers actually read the agreement rather than blindly clicking "agree," users may wonder what level of privacy their files will have if uploaded or sent through one of Google's services.

What privacy rights apply to electronic and online files is an issue that courts are struggling to develop²⁰ and that the United States Supreme Court has only recently and very cursorily addressed.²¹ The controlling legislation on privacy rights related to online activities such as email and cloud computing activities is the Stored Communications Act (SCA),²² part of the Electronic

control."); Jonathan Zittrain, Lost in the Cloud, N.Y. Times, July 20, 2009, at A19 ("[T]he federal government has been able to demand some details of your online activities from service providers—and not to tell you about it."); Fuzzy Maths: In a Few Short Years, Google Has Turned from a Simple and Popular Company into a Complicated and Controversial One, Economist, May 13, 2006, at 79, available at http://www.economist.com/node/6911096 ("[P]rivacy advocates voiced concerns over [Google's] practice of placing advertisements in contextually related e-mail messages on its webmail service.").

18. Google Terms of Service, Google, http://www.google.com/accounts/TOS (last visited May 26, 2011); see also Google Docs: Additional Terms of Service, Google, http://www.google.com/google-d-s/intl/en/addlterms.html (last visited Aug. 3, 2011).

19. Google Terms of Service, supra note 18.

20. See, e.g., Quon v. Arch Wireless Operating Co., 529 F.3d 892, 910 (9th Cir. 2008), rev'd sub nom. City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010) (finding employees had a reasonable expectation of privacy with their text messages).

21. City of Ontario v. Quon, 130 S. Ct. 2619, 2628, 2633 (2010) (holding that employer's search of employee's text message did not violate the Fourth Amendment and, assuming arguendo for the sake of dismissing the case on other grounds, that the employee had a reasonable expectation of privacy in his text messages).

22. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1860-68 (codified as amended at 18 U.S.C. §§ 2701-2711 (2006)).

502 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 28:2

Communications Privacy Act of 1986.²³ Given that the SCA was enacted in the 1980s, courts have struggled...