Is The Rate of Change in Technology Initiating Legal Concerns?

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With the rate of change in technology happening as quickly as it is today, legal concerns are building up everywhere.

Both cannot keep pace with how fast things are suddenly happening.

And given Moore’s Law, this pace is not about to slow down either — which also means there are going to be some headaches as well as opportunities in dealing with the legal circles…

Identify the Constants

No matter how fast anything changes there are some constants that must be taken into account.

As cloud computing gets its name from the fact that everything you do seems to be available anywhere, then where is your data really located?

How is it being stored?

Who is responsible for its security?

Laws are usually based upon entities and/or sovereignties and it creates boundaries in which the protection of the law is supposed to be applied.

Given the nature of cloud computing then, a key question about cloud computing remains unresolved in the law books as well the courts.

Questions as to which law applies to your organization’s data in the cloud are basically simple:

The law as applied to where you are located?

The law as applied to where your data is located? Or

The law where the data subject is located?

The answers, however, are not simple.

Especially if you have cloud services in other countries, international consensus on this issue has not yet been tested.

Verify Affects of Geographic Region

As most contracts provide which laws under which any disputes could be resolved, and the location of the court where such disputes could be heard, it’s essential for a cloud-computing contract to identify the geographic region within which the data centers hosting your data, and potentially the headquarters of the cloud provider, may be located, and to address the cloud provider’s obligations to keep your data in those regions.

Otherwise, the overlaps and potential conflicts between the possible governing laws could make legal and data access compliance impossible.

Controlling 3rd Party Access to Your Data?

As risk management focuses on retaining some measure of control, your contract with the cloud provider should require the cloud provider to notify you regarding its receipt of any 3rd party request to access your data.

Be sure to specify the time frame within which such notice should be provided.

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And make it paramount that in ALL cases notice should be given ahead of granting access to any of your organization’s data.

Also, make your cloud provider to make an obligation to limit the disclosure of your data to the extent legally possible, and to cooperate with your efforts to appropriately manage the release of any data.

The Last Word

Most of this can be performed proactively by a due diligence investigations of the cloud provider’s standard practices and procedures.

These will reveal that it has a policy in place that meets your data access requirements, and you should codify this in the contract, and include a copy of that policy as an attachment.

Credit is due to Thomas Trappler for sharing much of this information. Thomas is the director of software licensing at the University of California, Los Angeles, and a nationally recognized expert, consultant and published author in cloud computing risk mitigation via contract negotiation and vendor. He offers several guides to cloud computing contracts.

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Garrett O'Brien

CEO, Chairman, Publisher, Editor at The HRIS World Research Group

Garrett is the publisher, editor, writer forThe HRIS World Research Group, which includes The HRIS World, The HRIS World Research, The HRIS World Jobs, The HRIS World News, and The HRIS World Videos

With more than 20 years in roles as a client executive sponsor (#thwCES), project manager as well as functional / technical lead, Garrett is sought for his expertise for project insights, thought leadership, and team management globally.

He has been involved in large-scale and complex implementations since 1991 and has recently moved his operations to be with his wife in Brazil.

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