Legal framework for cloud computing

Readers of this blog on innovation policy maybe interested in this commentary from The Conversation. Again as always with these news snippets I have not reproduced the full article - pls follow the link.

From The Conversation

http://theconversation.com/a-new-legal-framework-for-the-age-of-cloud-computing-37055Dan Jerker Author of the original  B. Svantesson Co-Director Centre for Commercial Law at Bond University

The Problem

"Cloud computing, by its very nature, transcends location, geography and territorial boundaries. Data accessed in one country might be stored half way across the world, or even in servers in multiple countries.

International law, on the other hand, sees the world through the lens of various jurisdictions, which are inherently linked to location, geography and territorial boundaries.

So when cloud computing and international law interact, sometimes the results can be highly problematic.

For example, in December 2013 the US government served a search warrant on Microsoft under the Electronic Communications Privacy Act of 1986. The warrant authorised the search and seizure of information associated with a specific web-based email account that is stored at Microsoft’s premises in Dublin, Ireland."

A New Paradigm

"To move forward, we must recognise that the territoriality principle, and the other Harvard Draft principles, are merely proxy principles for underlying core principles. They were, after all, constructed to reflect the legal practise at the time.

Particularly when we are trying to apply the law to novel phenomena that need to become the subject of clear legal rules, we need to cut away the undergrowth of such proxy principles and identify the core principles that are reflected in them. Only then will we be able to focus on the considerations and values that truly are to be balanced.
It seems to me that the essence of the jurisdictional principles currently used may be distilled into three core principles.

Jurisdiction may only be exercised where:

• there is a substantial connection between the matter and the state seeking to exercise jurisdiction

• the state seeking to exercise jurisdiction has a legitimate interest in the matter

• the exercise of jurisdiction is reasonable given the proportionality between the state’s legitimate interests and other competing (state) interests."