Free at What Cost? Cloud Computing Privacy Under the Stored Communications Act
45 Pages Posted: 30 Sep 2010
Date Written: April 1, 2010
The Stored Communications Act (SCA), a component of the broader Electronic Communications Privacy Act (ECPA), is the primary federal source of online privacy protections, but it is more than twenty years old. Despite the rapid evolution of computer and networking technology since the SCA’s adoption, its language has remained surprisingly static. The resulting task of adapting the Act’s language to modern technology has fallen largely upon the courts. In coming years, however, the courts will face their most difficult task yet in determining how cloud computing fits within the SCA’s complex framework.
This Note ultimately concludes that the advertising supported business model embraced by many cloud computing providers will not qualify for the SCA’s privacy protections. In exchange for “free” cloud computing services, customers are authorizing service providers to access their data to tailor contextual and targeted advertising. This quid pro quo violates the SCA’s requirements and many customers will find that their expectations of privacy were illusory. Consequently, a cloud provider’s terms of service agreement may be the only privacy protections applicable to its customers.
Subsequently, this Note explores whether the lack of privacy protections for cloud computing is consistent with Congress’s intent in adopting the SCA and whether it will be a catalyst for expanding privacy measures in the future. In response, Part V explores the SCA’s legislative history and argues that the modern form of cloud computing is incompatible with the concerns and Fourth Amendment principles that motivated Congress’s adoption of the Act. Part VI further examines potential judicial, legislative, and societal forces that could prompt revisions to the SCA, but concludes that the lack of privacy protections in cloud computing is unlikely to be addressed anytime soon.
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