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Lawful Access in the EU: The Pipe to the Cloud?

Lawful Access in the EU: The Pipe to the Cloud?. Professor Peter Swire Ohio State University & Future of Privacy Forum Georgetown Law School Conference “Law Enforcement Access to the Cloud” March 19, 2012. Outline. Why law enforcement shift to cloud records Volume of data up

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Lawful Access in the EU: The Pipe to the Cloud?

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  1. Lawful Access in the EU:The Pipe to the Cloud? Professor Peter Swire Ohio State University& Future of Privacy Forum Georgetown Law School Conference “Law Enforcement Access to the Cloud” March 19, 2012

  2. Outline • Why law enforcement shift to cloud records • Volume of data up • Adoption of encryption in communications • Cloud best chance to get the data • E.U. practices for law enforcement & national security • U.K. law • Need much more transparency to compare to U.S. practices

  3. Encrypted Communications, Now • Ahah! Make it easy for the user • Webmail - Gmail, Hotmail – 2010 • Blackberry/RIM • Virtual Private Networks • Facebook enables it • SSL standard for E-commerce (credit cards) • Skype and other VoIP The result – lawful access at ISP or local telco only gets encrypted content

  4. Ways to Grab Communications • Break the encryption (but today is strong crypto) • Grab comms in the clear (CALEA doesn’t apply to email, data) • Grab comms with spyware before or after encrypted (not good cybersecurity) • Grab stored communications, such as in the cloud • My thesis: #4 is becoming FAR more important

  5. When All Else Fails:The Pipe to the Cloud

  6. UK & Data Protection • (Based on research of Ian Brown, Oxford) • Data Protection Act 1998 • L.E. & N.S. broad exemptions • Permits voluntary agreements with L.E. or N.S. agencies to turn over stored records • E.U. Data Retention Directive in effect, despite data protection authority concerns

  7. U.K. & Lawful Access • Regulation of Investigatory Powers Act 2000 • Subscriber and traffic data, no court order • Telecomm providers must facilitate lawful interception, similar to CALEA • Counter Terrorism Act 2008 • Appears to override obligations of confidentiality, for disclosure to intelligence agencies • For content intercepts • Automated search appears OK if originate or terminate outside of UK

  8. EU & US on Lawful Access • How to resolve the EU allegations that cloud services should be kept in the EU due to “Patriot Act”? • Resolution requires a good comparison of EU & US • Transparency • U.K. law may well have less court supervision than U.S. law • Lack of clear description of law elsewhere in E.U. • Even less transparency about actual practice: “difficult to ascertain” • Dropping L.E. & N.S. from the draft Regulation sign of continued lack of transparency • Should resolve growing dispute based on accurate understanding, not allegations

  9. Thank you.

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