FORENSIC FILES: Clouds on the horizon

You may not know it, but we are yet again poised on the edge of a potential revolution in computing.
It's called "cloud computing" and it's drawing quite a bit of attention these days. If you use web mail, Facebook or Google Docs, you are already in the cloud. Interested parties include not only Chief Information Officers and IT folks, but those of us in electronic discovery as well. So, what exactly is this cloud computing?

In essence, cloud computing is computing services delivered on demand over the Internet. Cloud computing can offer much, if not all, of your desktop or network functionality over the Internet. Cloud services include word processing, sales force management, storage and email just to name a few.

These services are generally broken into three categories: Software as a Service (Saas), Infrastructure as a Service (Iaas) and Platform as a Service (Paas). Let's look a little closer at each.

Software as a Service could include a wide range of offerings from common office applications (like word processing, spreadsheets, etc) to customized applications targeted to sales and human resources.

Infrastructure as a Service replaces much of a company's traditional network including PC's and servers, along with their associated processing, memory and storage.

Lastly, Platform as a Service allows developers to create custom applications on a wide variety of platforms without having to actually purchase the supporting hardware and software.

The cloud may be new, but it has strong roots to predecessors such as mainframe computing. Technology titans like Amazon, Google and Microsoft are jumping into the cloud with both feet.

The cloud offers several advantages that make it attractive to the business community.

First, the cloud can substantially reduce costs. Companies normally have to purchase computing resources (hardware and software) up front. Buying these outright can be very expensive. In the cloud, companies would only need to buy "stripped down" terminals (monitors, keyboards, etc) for each employee as opposed to full-blown computers and servers. Applications such as Microsoft Office could also be dispensed with, as the cloud would now provide them.

Second, cloud resources behave like utilities. Like water and electricity, you only pay for what you use.

Third, all of your computing resources (applications, data, etc) are available to you anywhere you have an Internet connection.

Fourth, the cloud makes computing an elastic resource that can be scaled up or down depending on demand.

As the cloud rolls in, the legal system finds itself once again playing "catch-up" to technology. The cloud represents another giant leap forward, further widening the gap between technology and the law.

While the cloud offers some distinct advantages over today's computing models, it does not necessarily contain a silver lining from a legal perspective. In fact, this cloud can turn into quite a storm.

Data moves freely in the cloud without any regard for jurisdictional boundaries. The data could be in another state or even another country. The relevant laws and requirements can be vastly different outside the United States.

The integrity of the evidence may also be a concern. How do we know that one company's data isn't commingled with another's?

Duplicability is a major concern with ESI (electronically stored information) and the cloud is no different. Multiple copies of records may exist in multiple locations in the cloud. Again, jurisdictional issues could arise and complicate the situation.

Responsiveness and compliance are also areas of concern. What happens when the data is subpoenaed? Can my cloud provider respond effectively to a litigation hold or discovery order? Does my provider's cloud meet any regulatory requirements that apply to my client?

These are all questions and concerns that should be addressed BEFORE committing to a significant use of cloud resources. The service agreement is a good place to start when evaluating cloud providers. It should clearly explain how they would respond to these and other legal requirements.

The cloud is already here and not likely to go away. Clients should be made aware that all of the linings in this cloud are not necessarily silver.

Original article by: JOHN SAMMONS

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