Cloud software like Gmail and e-mail protocols like IMAP make it easy to access your e-mail from any computer. They are also, unfortunately, subject to the Stored Communications Act. The language of the Stored Communications Act is so broad that it seems to apply to any e-mail server (including Exchange servers), whether it is in your office or Google’s data center.

via Is E-mail Secure?.

But the Stored Communications Act, as I read it, does not allow easy access to email server’s “in your office”–the physical access required generally requires a warrant, whereas it’s usually the 3rd-party nature of storing materials with someone else that makes access by the government easier. Your office IT department is simply not an ISP under the statute, since it does not provide services to the public.

So while, yes, the SCA is a concern, and storing your messages in the cloud is a potential issue if you are in a field like law (where client privacy is critical). But it does not require you to download all your messages to your laptop to get Fourth Amendment protections. Having your company store them is good enough to protect corporate information (i.e., it’s good enough for your company–they could always consent to a search even if you, as an individual, don’t want it).

So, to summarize, if you as an individual want maximum protection from government search, keep everything on your own computer. Corporate materials are safe on a corporation-owned server–but if you have personally private information, that might be subject to the whims of your corporation. Unfortunately, storing your emails on your ISPs server–or in “the cloud,” as with Gmail–offers the least protection, since the government doesn’t need search warrant to get access.

Hopefully, this will change in the future once the law adapts to current technology–but don’t hold your breath.

For more about the Stored Communications Act, see Orin Kerr’s analysis on SSRN: A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It

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The cloud consists of data and services that live on someone else’s servers. Although the term itself is new(ish), the basic idea is embodied by traditional legal research services like LexisNexis and Westlaw — data lives on someone else’s servers, not your own. Thus, someone else controls the data, not you. And someone else can delete or modify the data, and you’d never know…

It’s one thing to have to contend with Supreme Courts, like California, that have the power to “depublish” an opinion that helps your case and making it worthless as far as precedent is concerned. But to my knowledge, those cases are still on the books, and binding on the parties to the litigation that created the opinion. It’s an entirely different problem when a court can ask a publisher to take down an opinion previously published, and the publisher does it. In fact, the publisher has apparently been doing it for years. Maybe you knew about it, but I didn’t.

via Dear Publisher, Please Stop Deleting Case Law | Jason Wilson | Law Publishers.

This is the sort of thing that has always given librarians heart attacks — to the extent that one librarian I knew years ago attempted to print out every Web site she ever accessed and stored them in file cabinets. A bit extreme? Yes, but the point was that she could control it once it was in print: the data couldn’t disappear, change, etc.

I don’t have the solution to this conundrum — cloud services make too much sense to fight — but the downsides are expensive, too. What to do, what to do?

Speaking in the context of technology, Michael Crandell at GigaOM writes:

Take yourself back for a moment to 1990, to the era of dueling operating systems: OS/2 and Windows. At the time, many people still used MS-DOS, and Windows was new (and klunky). Microsoft had cooperated with IBM to create OS/2 to overcome the limitations of DOS by adding multitasking, protected mode, and enhanced video APIs. OS/2, they both trumpeted, was a revolutionary computing platform.

Oops. Guess what? Turns out no one wanted revolutionary. We all wanted those improvements, to be sure, but we wanted them delivered in a way that didn’t require redesigning and rewriting our applications, or limiting the devices we could use. Voila! Windows 3.0 brought us evolutionary OS advances, and we all know who won.

Michael applies this lesson to “cloud computing,” a (some say) revolutionary approach to technology infrastructure that places data and applications in remote data centers accessible via the Internet:

What does this have to do with cloud computing? Well, the same principle applies to cloud offerings today. The easier a platform or service is to adopt for existing applications and uses, the more popular it’s going to be, whereas the more it breaks with current practice, the less widespread its appeal.

But the lesson here is broader than the application to cloud computing or even technology. People generally are resistant to change, especially when it means throwing out work they’ve already invested in. This goes for changes in regulatory schemes, legal standards, APIs, user interfaces, and business models. If there can be this much resistance to a new approach that allows for cheaper, more flexible, and more rapid application development, should it be any wonder that music labels or Hollywood so rabidly seek greater protections to preserve the business approach they’ve been using successfully for so long? (Or that the electoral college still exists?)

This is a fundamental lesson that can be applied at many levels. It can mean branding a revolutionary change as evolutionary. It can also mean providing a clear transition to those impacted that protects previous investments.

But the preference for evolution, for protecting prior investments, does not translate to requiring timid technological, legal or social development. It merely means softening the sense of change by giving users, customers, or citizens something to hold onto that provides a familiar interface (in tech terms) to the new way.

A good lesson to remember whatever your field.

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Yet in a world of imperfect hardware and software, as well as regulatory and legal issues, choosing one company for storage is still ultimately a gamble. It may be unthinkable that an EMC or Amazon or Google could fail, but it’s not impossible. No matter how carefully you choose, entrusting your data to a single online storage vendor is the equivalent to storing it on a single hard drive: it introduces a single point of failure into the system.