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Posted: August 13, 2013

Cloud computing and surveillance

There's more here than meets the eye

Cindy Wolf

The U.S. cloud-computing industry is twisting in the wind over the NSA surveillance revelations, and the media isn't helping. Where are the spin doctors for the cloud industry?

The most vocal foreign critics are British and EU officials. They’ve been warning their constituents away from U.S. cloud services over fears of government intrusions; some are even proposing more restrictive legislation and a UK-only (or EU only) cloud. I’m not advocating for PRISM, but some background would help here.

As reported recently in The Guardian and the Irish Times, most European governments can and do access their citizens’ electronic data when held in country with far less due process than the U.S. requires. The GCHQ (Britain’s version of the NSA; its motto: “Keeping our society safe and successful in the Internet age”) has its own version of PRISM:  Tempora. With the secret cooperation of BT, Vodafone, Verizon, Global Crossing, Level 3, Viatel and Interoute, GCHQ gets details of telephone calls, emails, Facebook posts and other online traffic by monitoring undersea fiber-optic cables – the ones that make up an enormous share of the backbone of the Internet.

So, excuse me for laughing at the hyperbole around the dangers of U.S. cloud providers because of PRISM. Methinks there is more behind the European outrage than data privacy. The U.S. absolutely dominates cloud computing. I don’t know why really, but I can make some guesses.

One would be the relative strength of the U.S. economy versus Europe in the last 10 years when cloud computing has mushroomed. I have another theory that is related to privacy. The reality is that the U.S. has lax privacy laws and the EU has restrictive privacy laws that don’t play well in a cloud environment. It’s normal for the law to lag behind technology, but in this case, the U.S.’ dearth of regulation has allowed the cloud industry to develop relatively unhindered. Europe’s privacy laws from the nineties don’t help.

While both U.S. and European cloud providers serving EU residents need to comply with EU law, in my experience many U.S. providers don’t bother. I blame that on ignorance and arrogance. As many lawyers as we have in the U.S., cloud providers just don’t think they have to worry too much about legal requirements. And if they stay within our borders and don’t handle financial or health related data, they don’t have much to think about. So, why not allow users from other countries? The U.S. doesn’t regulate transborder data flows.

I’m not advocating for PRISM or Tempora (or the next secret government program that will be revealed). Nor do I believe all privacy laws are useless. But so far, there has been a major disconnect between what cloud users expect, believe and actually get related to privacy – whether their data is in the cavalier U.S. or the tight-lipped EU.

 Cindy Wolf is a Colorado lawyer with more than 25 years experience representing large and small domestic and multinational companies. Her expertise is in corporate law and commercial contracting, with an emphasis on international issues, technology licensing and the Internet. She can be reached at  or visit her blog at

This publication is provided for informational purposes only. It does not constitute legal advice. There is no implicit guarantee that this information is correct, complete, or up to date. This publication is not intended to and does not create an attorney-client relationship between you and the author.

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