Who owns your cloud-based data? (Hint: It might not be you)

My Google Behavioral Profile
Image by JTones via Flickr

Tanya Forsheit at the Information Law Group blog authored a lengthy and fascinating series on the legal implications of cloud computing, but one particular passage caught my eye:

Under Rule 34 of the Federal Rules of Civil Procedure, a party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control.  Who has control of data in the cloud?

Translated from legalese, this means that if a cloud-based data storage company is sued, it can be compelled to hand over any data in its “possession, custody, or control.” Does that mean Google can be compelled to hand over your Gmail account contents to a plaintiff, even if that plaintiff isn’t you? More simply, does Google own your Gmail data, or do you? The answer lies in how your EULA is worded.

Given Google’s “you ain’t got no privacy” stance and Yahoo’s willingness to sell your data to Uncle Sam, there’s a pretty clear legal policy from two of the bigger players in the game. If they own your data, that means they can decide when and how you access it. Right now, that access is fairly unfettered, but they could change it at their whim, at which point it will be you suing your own cloud-based data store for access to your own information. Personally, I’d have a third-party backup (or three) on standby, just in case.

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4 thoughts on “Who owns your cloud-based data? (Hint: It might not be you)

  1. It doesn’t sound to me like Backupify changes any of the issues of who has “possession, custody, or control” of my data. Instead, it adds another party who has a copy of the data and can be compelled by subpoena to produce it. Backupify apparently encrypts my data, but since I didn’t supply a public key, Backupify must have the decryption key, rendering encryption moot from a legal perspective.

    What am I missing here?

  2. Hi Ross,
    First of all, we do provide you the ability to use your own S3 account, which means you can access your data in other ways (via jungledisk, for example). Plus, you can download all your files to your PC, so you have local copies of the data. We are working to make this easier. All the stuff you mention is on our near-term roadmap. We will soon let you set your own key for advanced encryption, and we will let you have other backup options. We are in the process of integrating with FilesAnywhere.com, for example, so your data can backup there.

  3. I think this legal issue doesn’t really concern me that much compared to say, Chinese dissidents.

    Nevertheless, I still like the concept of Backupify.

    I’m sure its success will influence others to create similar websites (especially after the free introductory period).

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