The Stored Communications Act, which was used to allow the FBI to access Warshak's email communications without a warrant, his consent, or any form of notification.
The appeals court decisions in the case that argue:
- Even if the Stored Communications Act is unconstitutional, Warshak cannot block introduction of the evidence as "the cops reasonably relied on it"
- Regardless of that outcome, the court could not determine if "emails potentially seized by the government without a warrant would be subject to any expectation of privacy"
The Supreme Court decision in Smith v. Maryland, in which the court argued that people generally gave up an expectation of privacy with regards to their phone records simply through the act of dialing their phone--which potentially translates to removing privacy expectation on any data sent to and accessible by a third party.
This is a serious flaw in the constitutional protections against illegal search and seizure, in my opinion, and may be a reason why US data centers will lose out completely on the cloud computing opportunity. Think about it. Why the heck would I commit my sensitive corporate data to the cloud if the government can argue that a) doing so removes my protections against search and seizure, and b) all expectations of privacy are further removed should my terms of service allow anyone other than myself or my organization to access the data? Especially when I can maintain both privileges simply by storing and processing my data on my own premises?
Couple this with the fact that the Patriot Act is keeping many foreign organizations from even considering US-based cloud storage or processing, and you see how it becomes nearly impossible to guarantee to the world market the same security for data outside the firewall as can be guaranteed inside.
It is my belief that this is the number one issue that darkens the otherwise bright future of cloud computing in the United States. Simple technical security of data, communications and facilities is a solvable problem. Portability of data, processing and services across applications, organizations or geographies is also technically solvable. But, if the US government chooses to destroy all sense of constitutional protection of assets in the cloud, there will be no technology that can save US-based clouds for critical security sensitive applications.
It may be too late to do the right thing here; to declare a cloud storage or processing facility the equivalent of a rented office space or an apartment building--leased spaces where all constitutional protection against illegal search and seizure remain in full strength. When I was younger and rented an apartment, I had every right to expect law enforcement wishing to access my personal spaces would be required to obtain a warrant and present it to me as they began their search. The same, in my opinion, should apply to data I store in the cloud. I should rest assured that the data will not be accessed without the same stringent requirements for a search warrant and notification.
Still, there are a few things individuals and companies can do today that appear OK to thwart attempts to secretly access private data.
Encrypt your data before sending it to your cloud provider, and under no circumstances provide your provider with the keys to that encryption. This means that the worse a provider can be required to do is to hand over the encrypted files. You may even be able to argue that your expectations of privacy were maintained, as you handed over no accessible information to the provider, simply ones and zeros.
Require that your provider modify their EULA/ToS to disavow ANY right to directly access your data or associated metadata for any reason. The exception might be file lengths, etc., required to run the hardware and management software, but certainly no core content or metadata that might reveal the relevant details about that content. This would also weaken the government's case that you gave up privacy expectations when you handed your data to that particular cloud provider.
Store your data and do your processing outside of the United States. It kills me to say that, but you may be forced into that corner.
Oh, and this issue isn't even close to being on the radar screen of either of the major presidential candidates at this point. I'm beginning to consider what it would take to get it into their faces. Anyone have Lawrence Lessig's number handy?