Outrun the Lions: A Practical Framework for Analysis of Legal Issues in the Evolution of Cloud Computing
Rashbaum, Kenneth N., Borden, Bennett B., Beaumont, Theresa H., Ave Maria Law Review
Every morning in Africa, a gazelle wakes up. It knows it must run faster than the fastest lion or it will be killed. Every morning a lion wakes up. It knows it must outrun the slowest gazelle or it will starve to death. It doesn't matter whether you are a lion or a gazelle. When the sun comes up, you better start running. (1)
There is something about Cloud Computing that is fundamentally different. But is there a significant difference in the laws that govern it, or do we merely need to look at already established legal principles that govern it in a more holistic way? True, cloud technology has changed the way we interact with each other. We communicate, socialize, work with, sell to, and buy from each other in ways unimaginable a generation ago, due in large measure to the advent of the Internet or, more colloquially, the Cloud. The impact of the Cloud cannot be overstated. For example, most social media are based in Cloud technology. Social media have changed the paradigm of interpersonal communication, to sharing thoughts and activities in ways previously impossible and, not so long ago, impolite; to their uses in organizing movements that have toppled governments, such as in Egypt and other countries during the "Arab Spring"; (2) to securing the assistance of the public for law enforcement to such an extent that the suspects of the Boston Marathon bombings in April 2013, were apprehended within days because the requests for videos and photos that could depict the identities of the suspects--many such images were, in fact, posted on social media--were sent to millions within minutes on social media sites, using Cloud technology. (3)
Indeed, law is fundamentally society's commentary on interaction; it rewards reasonable conduct and punishes unreasonable conduct. But, for the most part, a legislature or court does not comment on a particular type of interaction until it has already occurred and its consequences have played out. Many types of interactions that have sprung from the Information Age are new in degree and sometimes in kind, and so there is often little or no law to guide those interactions. For every advantage Cloud Computing offers--such as cost-efficiency, flexibility and scalability--there are risks associated with legal and regulatory compliance, data control, security, privacy, legal ethics, and determinations of reasonableness of the utilization of Cloud services. Contrary to the belief of many, it is well within our capabilities to analyze these legal quandaries and counsel clients appropriately in the Age of the Cloud--even without established case law or statutes--as long as we know, like the gazelle and the lion, that we have to run to succeed. And like the lion and the gazelle, we must rely on instincts to do so. For lawyers, this means applying established legal principles in new ways.
We live in an age of marvels, but we see them through frames of reference that were constructed over many years and, as a result, we typically do not quite run fast enough to keep up with the pace of technological advances. The digitization of information and the development of the infrastructure to largely decentralize and widely distribute it through the Cloud, have given rise to an age that has changed the way we interact with each other in new ways. Yet, the fact that there may be little or no law regarding some of these new interactions does not mean that there is no guidance on how to conduct oneself. Every time a new kind of technology fundamentally alters our interactions, society has to sort out how to deal with them, and develop laws governing them. Some examples include the advent of the telegraph replacing the pony express, the telephone replacing the telegraph, the rise of locomotives and automobiles, and the widespread use of electrification. Each of these technologies or applications of technology changed how we interacted and the law developed to reward the "right" kinds of interaction and punish the "wrong" kinds. …