Cloud computing requires new thinking on privacy

Derrick Harris (GigaOM), Nolan Goldberg (Proskauer LLP), Michelle Quinn (POLITICO Pro)The move to the cloud has broad implications on privacy and requires a lot of discussion on the boundaries and expectations for data in a cloud environment. The government’s approach to data privacy, in particular, is of great concern, from the legislation it enacts to the way law enforcement uses it, said Nolan Goldberg, senior counsel for IP and technology at law firm Proskauer.

Goldberg appeared at the GigaOM Structure conference on Thursday and talked about the new challenges and issues emerging around privacy for the cloud. He said it’s complicated subject because it’s affected by an array of federal and state legislation and constitutional amendments and statutes. But he said the challenge is now in trying to understand how to best legislate privacy when data is stored in the cloud.

The government has an existing law called the Electronic Communications Privacy Act, which governs cloud computing. But it’s in need of updating, something Senator Patrick Leahy is undertaking. But Goldberg warned that the laws need to focus more on the data and not where it resides. He said the ECPA has become outdated because, for example, it treats opened and unopened emails differently. In the future, laws should provide protection uniformly for data, rather than being tailored for the cloud computing environment.

“While the cloud seems important today, we don’t want to write a bill that’s specific to cloud computing because it will be obsoleted once it’s written,” Goldberg said.

He said another issue to be dealt with is how law enforcement uses data and whether or not protections should be in place for when police compile lots of disparate data to build dossiers on people. Goldberg said as the price of computing has dropped, it’s allowed police to track pattern behavior from a lot of sources, creating a larger picture of people that may require its own privacy protections. Though he said it’s not unlike the traditional work of investigators building cases against people, he said there is a question where to draw the line on using aggregated data.

“The practical barriers to building these big dossiers on us, it’s not there anymore and it’s something we have think about,” Goldberg said.