cloud computing and law-india legal summit

Cloud Computing and Law

Adv. Prashant Mali [BSc.(Phy.), MSc.(Comp. Sci.), LLB]

President – Cyber Law ConsultingCyber Law & IPR ExpertAuthor & Speaker

www.cyberlawconsulting.com

India Legal Summit 2011

Why Cloud Computing ?

Cloud computing services offer low barrier to entry and easy scaling possibilities.

“click-wrap agreements” are legally enforceable!

[ Myth or Reality ?? ] Agility/flexibility of technology – implying a power shift Always on – ubiquitous Real time information and immediate feedback


Legal Issues in Cloud Computing


Liability

Compliance Law

Copyright Data Portability


Law for Cloud Computing Service

Cloud computing service providers are intermediary as per The IT Act, 2000

S2(1)(w) "Intermediary" with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes;



Compliance as per The IT Rules 2011

The intermediary shall observe following due diligence while discharging his duties, namely : ―

(1) The intermediary shall publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary’s computer resource by any person.

(2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish,

transmit, update or share any information that …. If such hosting reported action to be taken in 36 hours FACTS :Drop Box , Rapid Share, Gmail Storage contains

infinite pornography, pirated s/w , songs etcwww.cyberlawconsulting.com


Auditing requirements Many contracts impose auditing possibilities that include physical inspection how can these

auditing requirements be complied with when geographically decentralized cloud services are used?

Applicable Law & competent court If outside own country, any litigation can become

prohibitively expensive What happens in case of bankruptcy of the cloud computing service provider?

Compliance of Cloud Computing



Indemnity Issues in Cloud Computing

We and our licensors shall not be responsible forany service interruptions, including, without

limitation, power outages, system failures or otherinterruptions, including those that affect the receipt,processing, acceptance, completion or settlement of

any payment services. (...)

Neither we nor any of our licensors shall be liable toyou for any direct, indirect, incidental, special,

consequential or exemplary damages, including,but not limited to, damages for loss of profits,

goodwill, use, data or other losses (...)Who will indemnify the Customer or the user ?


Agreement Clauses in Cloud Service

”You are utilizing a shared disk model and we cannot RISK the chance your third party may interfere with other clients using the same platform”.

What happens to risk mitigation ?



Legal Liability of Cloud Providers

Including India many jurisdictions, cloud providers can be held liable for the illegal data they may be hosting

Escape Routesno liability for services that “consist of” the storage of

electronic information under the condition that the provider has No knowledge or awareness of illegal nature.

..and removes or blocks illegal data when it does gain knowledge or become aware of illegal natureLiability protection does not prevent so-called injunctions, which can be as costly and timeconsuming



Loss Of Location in Cloud Computing

With Indian Investigation agencies, Loss of location is likely to cripple cybercrime investigations at a very early stage.

The Budapest Convention on Cybercrime already features a legal principle which overrules location as a legal connecting factor: Consent. Article 32 of the Budapest Convention states:

Article 32 – Trans-border access to stored computer data with consent or where publicly available

India not a Signatory to Convention on Cybercrime



Letter rogatory an option

The Interpol can take necessary follow up steps for this the local police issues letters rogatory under the provisions of Section 166 A Cr PC.



Data Portability on Cloud

Who is really managing my company’s sensitive information?

What are their internal security practices? How well do they handle incident response?

How reliable is the infrastructure that provides the service?

Are they prone to service outages? How can my service provider recover my

cloud stuff?What is H/W & S/W Portability of my DATA ?


Copyright Issues for Data on Cloud

Cloud storage as offered by Box.net and other providers like Dropbox do offer some of the features of file sharing that a recent court ruling found illegal.

RIAA v/s LimeWire.

(Recording Industry Association of America)RIAA?? which took NAPSTER DOWN)



ThankYou

[email protected]

Mobile : 09821763157



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