When you use the public cloud, is your data in the "public" space?  According to the Department of Justice it is. In a number of cases, the Justice Department is asserting that data help by a third party, such as a cellular service provider or a hosting provider, can be demanded by government agents without a warrant.

But it's not just cloud computing that should concern you: co-location facilities, web hosting and service-as-a-software may also expose you to a government fishing expedition. How can a business protect against inadvertent disclosure of proprietary information and the possibility of loss of data and service due to an over-eager sheriff? Having the right contract is certainly a good start.

There are two aspects you have to consider when negotiating security and privacy with a service provider. First, you have to have the correct principles encoded in your contract. Second, you have to worry about how well they are executed by the provider.

If you read most service contracts you will see that "law enforcement assistance" sections are usually vague. It is up to you to negotiate terms that address key issues of data protection and safeguard your rights:

  • Demand that law enforcement requests are properly documented. Show me the warrant. A phone call from agent Bob at headquarters is not a warrant.
  • Demand that you are notified of any requests that may affect your data. You have the right to contest warrants in court and most corporations do contest them.
  • Demand that each data access request, whether granted or not is documented.

If you see the usual weak clauses that read: "ISP will make data available to law enforcement and third parties to assist in investigations" you should be very worried. The standard set by the clause above is "we give your data to pretty much anyone with a badge and a hunch, sometimes not even a badge".

Improving the contract language is, of course, not sufficient.

The contract is rarely reviewed when the FBI comes calling for your neighbour's data. This is where the service provider size matters: Large experienced providers with good privacy practices deal with hundreds if not thousands of warrants and they have teams of lawyers who do not just roll over at the first sign of an eagle on a faxed letterhead. Smaller providers may not have any process in place. When someone calls at 3am and scares the junior help desk person, your data will be on a truck in an hour.

Then again, one of the largest telecommunication companies was found to have a "portal" where millions of undocumented records requests were funnelled through with no audit or notifications. Ask your providers about their data privacy processes and legal departments. Ask how many requests they get and how they deal with them.

When you put your data outside your company's walls (literally), you lose some control. Use your contract to re-assert control and then ask the right questions to make sure the provider can honour their obligation to protect your data.