I've talked about all the great things that "cloud" applications can do for your digital life. But there's something that you should know before you start backing up all your personal data to an Internet server: you may be giving up a Constitutional protection in the process.
A few weeks ago, I was speaking with an executive at a Canadian hospital about electronic health records and using "cloud" services—data storage and software that resides on Internet servers instead of on your work or home network. He told me that his hospital couldn't use cloud services from U.S. software companies because of the potential risk to patient privacy. And that risk applies to anyone in the US that uses cloud services as well.
Why? After all, most of these services offer password protection and even higher levels of security, including encryption both on the server and as the data crosses the Internet. The data should be as safe there as anywhere, or so you'd think—maybe even safer than on your PC.
But these measures don't eliminate a risk that most of us don't even consider: government or employer snooping. US courts have said that some data stored in cloud applications doesn't have the same "reasonable expectations of privacy" that apply to your home and your phone calls. In other words, the government doesn't need a warrant to go into your stuff.
So far, that position has only been tested for e-mail and text messages. Google and other Internet e-mail providers have warned customers that e-mail and data stored for longer than 180 days might lose constitutional protections against warrantless searches, because of a law called the Stored Communications Act (SCA).
The SCA was recently found to be unconstitutional by a circuit court. However, the finding may be appealed and brought to the Supreme Court, where the ruling could be reversed. A Supreme Court ruling in July found that employers were allowed to search through employees' text messages—both work-related and personal—to determine if they were violating company policies.
And even if the SCA is found to be unconstitutional, anything you share in the cloud with family and friends may lose its constitutional protection. So, for example, if you share files or photos with multiple friends on Facebook, Flickr, or other sites, that "reasonable expectation of privacy" may be considered forfeit by the courts.
The problem is that the laws protecting online privacy actually predate the public Internet. The SCA was an amendment to the Electronic Communications Privacy Act of 1986. Until Congress gets around to updating laws to match up with the reality of today's technology, you may want to be careful about what you put in the cloud, and for how long.
