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Cloud Computing

Cloud Computing

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Free at What Cost?: Cloud Computing PrivacyUnder the Stored CommunicationsAct
W
ILLIAM
J
EREMY
R
OBISON
*T
ABLE OF
C
ONTENTS
I
NTRODUCTION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196I. C
LOUD
C
OMPUTING
: A
N
E
MERGING
D
EFINITION
. . . . . . . . . . . . . . . 1197
A
.
A BRIEF HISTORY OF COMPUTER NETWORKING
. . . . . . . . . . . . . . 1197
B
.
THE ERA OF CLOUD COMPUTING
. . . . . . . . . . . . . . . . . . . . . . . . 1199II. O
RIGINS AND
O
PERATION OF THE
S
TORED
C
OMMUNICATIONS
A
CT
. . . 1204
A
.
ELECTRONIC COMMUNICATION SERVICES
. . . . . . . . . . . . . . . . . . 1205
B
.
REMOTE COMPUTING SERVICES
. . . . . . . . . . . . . . . . . . . . . . . . 1206
C
.
PRIVACY PROTECTIONS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207III. C
LOUD
C
OMPUTING AS AN
E
LECTRONIC
C
OMMUNICATION
S
ERVICE
. . . 1209IV. C
LOUD
C
OMPUTING AS A
R
EMOTE
C
OMPUTING
S
ERVICE
. . . . . . . . . . 1212
A
.
APPLICATION OF THE STATUTORY LANGUAGE
. . . . . . . . . . . . . . . 1212
B
.
AN EXAMINATION OF EXISTING CLOUD PROVIDERS
. . . . . . . . . . . 1214
C
.
EXISTING JUDICIAL PRECEDENTS
. . . . . . . . . . . . . . . . . . . . . . . 1218
D
.
INTERPRETING TERMS OF SERVICE AGREEMENTS
. . . . . . . . . . . . . 1220
E
.
IMPLICATIONS FOR CLOUD COMPUTING USERS
. . . . . . . . . . . . . . 1222V. C
AN
T
HIS
B
E
W
HAT
C
ONGRESS
I
NTENDED
? . . . . . . . . . . . . . . . . . . 1223
A
.
COMPETITION AND FREE MARKET DETERMINATIONS
. . . . . . . . . . 1224
B
.
CODIFYING THE FOURTH AMENDMENT
. . . . . . . . . . . . . . . . . . . . 1226VI. W
ILL
C
LOUD
C
OMPUTING
B
E A
T
IPPING
P
OINT FOR
O
NLINE
P
RIVACY
? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232
* Georgetown Law, J.D. expected 2010; University of California, San Diego, B.A. 1999. © 2010,William Jeremy Robison. I would like to thank Professors Elizabeth Banker, Marc Zwillinger, andMichael Songer for their assistance with early drafts of this Note. I am also indebted to Andrew March,Erin Langley, and the staff of 
The Georgetown Law Journal
for their insightful feedback.
1195
 
A
.
JUDICIAL OBSTACLES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232
B
.
LEGISLATIVE OBSTACLES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1234
C
.
SOCIETAL OBSTACLES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237C
ONCLUSION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239I
NTRODUCTION
Scott McNealy, the Chairman and former CEO of Sun Microsystems, causedan uproar in 1999 when he dismissed online privacy concerns and proclaimed,“You have zero privacy anyway. Get over it.”
1
Was he right? Within the realmof cloud computing, he may have been uncomfortably close to the truth. TheStored Communications Act (SCA),
2
a component of the broader ElectronicCommunications Privacy Act (ECPA),
3
is the primary federal source of onlineprivacy protections, but it is more than twenty years old. Despite the rapidevolution of computer and networking technology since the SCAs adoption, itslanguage has remained surprisingly static. The resulting task of adapting theActs language to modern technology has fallen largely upon the courts. Incoming years, however, the courts will face their most difficult task yet indetermining how cloud computing fits within the SCA’s complex framework.This Note ultimately concludes that the advertising supported business modelembraced by many cloud computing providers will not qualify for the SCA’sprivacy protections. In exchange for “free” cloud computing services, customersare authorizing service providers to access their data to tailor contextual andtargeted advertising. This quid pro quo violates the SCA’s requirements andmany customers will find that their expectations of privacy were illusory.Consequently, a cloud provider’s terms of service agreement may be the onlyprivacy protections applicable to its customers.Subsequently, this Note explores whether the lack of privacy protections forcloud computing is consistent with Congress’s intent in adopting the SCA andwhether it will be a catalyst for expanding privacy measures in the future. Inresponse, Part V explores the SCAs legislative history and argues that themodern form of cloud computing is incompatible with the concerns and FourthAmendment principles that motivated Congress’s adoption of the Act. Part VIfurther examines potential judicial, legislative, and societal forces that couldprompt revisions to the SCA, but concludes that the lack of privacy protections
1.
See
John Schwartz,
As Big PC Brother Watches, Users Encounter Frustration
, N.Y. T
IMES
, Sept.5, 2001, at C6.2. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, § 201, 100 Stat. 1848,1860–68 (codified as amended at 18 U.S.C. §§ 2701–2711);
see also
Orin S. Kerr,
A User’s Guide tothe Stored Communications Act, and a Legislator’s Guide to Amending It 
, 72 G
EO
. W
ASH
. L. R
EV
. 1208,1208 n.1 (2004) (noting the common reference to Title II of the Electronic Communications PrivacyAct as the “Stored CommunicationsAct”).3. Electronic Communications Privacy Act of 1986, Pub. L. No 99-508, 100 Stat. 1848 (codified asamended at 18 U.S.C. §§ 2510–2522, 2701–2712, 3121–3126).
1196 [Vol. 98:1195T
HE
G
EORGETOWN
L
AW
J
OURNAL
 
in cloud computing is unlikely to be addressed anytime soon.I. C
LOUD
C
OMPUTING
:A
N
E
MERGING
D
EFINITIONA
.
A BRIEF HISTORY OF COMPUTER NETWORKING
The law cannot keep up with the pace of change in computer networking. Bythe time legislatures or courts figure out how to deal with a new product orservice, the technology has already progressed. It is, therefore, useful to learnthe state of technology at the time Congress enacted a law or the Judiciaryissued a legal opinion to clarify the logic and principles that girded its decision.This is particularly true of the Stored Communications Act, which Congressstructured around on the state of technology in 1986. To understand the Act, andrecent innovations to which it might apply, a quick tour of some computerhistory is necessary.Early computer technology was prohibitively expensive for all but the largestbusinesses and organizations. In 1965, IBM offered to rent its early mainframecomputers for $50,000–$80,000 per month because few customers could affordtheir $2.2 million–$3.5 million price tag.
4
By 1970, the rental cost of increas-ingly sophisticated IBM mainframes grew to $190,000–$270,000 per monthand the purchase price exceeded $12 million.
5
The few entities that could afforda mainframe, including the Department of Defense, the Internal Revenue Ser-vice (IRS), and the National Aeronautics and Space Administration (NASA),shared its processing power and data storage with the entire organization.
6
Themainframe was a centralized resource that employees could access throughlab-coat wearing specialists in their IT department or by using a “dumb”computer terminal that existed only as a gateway to the mainframe’s functional-ity.
7
By the early 1980s, new advances diminished reliance on mainframes. Increas-ingly powerful personal computers allowed individual users to install applica-tions and store data on their own equipment, rather than using a sharedmainframe computer.
8
The development of operating systems, such as Mi-crosoft’s MS-DOS and Apple’s Macintosh interface, also made computers morefriendly to the average user.
9
By 1984, personal computer sales eclipsed thoseof large corporate mainframes in the $22 billion computer industry.
10
4.
See
IBMArchives: System /360 Model 75, http://www-03.ibm.com/ibm/history/exhibits/mainframemainframe_PP2075.html (last visited Feb. 12, 2010).5.
See
IBM Archives: System /370 Model 195, http://www-03.ibm.com/ibm/history/exhibits/ mainframe/mainframe_PP3195.html (last visited Feb. 12, 2010).6.
See
P
AUL
E. C
ERUZZI
, A H
ISTORY OF
M
ODERN
C
OMPUTING
47–173 (2d ed. 2003) (detailing thedevelopment and commercialization of mainframe computers).7. M
ICHAEL
M
ILLER
, C
LOUD
C
OMPUTING
: W
EB
-B
ASED
A
PPLICATIONS THAT
C
HANGE THE
W
AY
Y
OU
W
ORKAND
C
OLLABORATE
O
NLINE
11 (2009).8. N
ICHOLAS
C
ARR
, T
HE
B
IG
S
WITCH
: R
EWIRING THE
W
ORLD
, F
ROM
E
DISON TO
G
OOGLE
54–55 (2008).9.
See
C
ERUZZI
,
supra
note 6, at 269–76.10. D
AVID
R
EYNOLDS
, O
NE
W
ORLD
D
IVISIBLE
:AG
LOBAL
H
ISTORY
S
INCE
1945, at 513 (2000).
2010] 1197F
REE AT
W
HAT
C
OST
?

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