There has been a lot of conversation recently regarding the consequences of leaving your data in the cloud (see this), but it is hardly a new topic (this, and this). The thing that sets the Megaupload case described in the linked EFF article apart is that the Government, or at least this particular Agency, has opined that unless you store your data on infrastructure that you own yourself that it is no longer your property. I’m not a lawyer and I’m not going to pretend to be one, but while their argument may have legal grounds depending on the terms and conditions of the services in question, it definitely has no moral ground and really none based on precedent already made in other property rights cases.
- If I create something and attach it to an email in Gmail and send it to someone, does Google now own that?
- If I’m an author and write my book on Google Docs, does Google own it?
- If I store source code in Github does Github own it? Github’s hosting provider?
To be fair, Google clearly states that data stored in Google Apps is not owned by them (here), but would that stop a Federal agency who decided there was something to be found? I’d like to think so, but the world is far from perfect.
If the answer to any of the above questions is yes, then the answer to all of them must be yes, and vice versa. It’s past time that the we explicitly define property rights as they pertain to content stored on the Internet. Since Congress isn’t accomplishing much I think it falls to the service providers to make it very clear to their customers what content they own, and what content they don’t. They must also decide that warrants will be required to gain access to user data (that isn’t already publicly available, ala Twitter or Blogger), rather than making “strategic” business decisions that allow Federal Agencies to access the data just to avoid possible legal headaches. I have no evidence that this is actually happening, but I can’t imagine that such proposals have not been made or at least considered.
Residents who lease property are afforded the same Fourth Amendment protections on the leased premises as people who own their residence (lien or not). Your landlord cannot give the authorities access while you are in good standing and even then not without a warrant. It’s simply not their permission to give. Should this same concept not transfer to services on the web? You may not own the actual container in either case, but it doesn’t change the fact that you own the contents.
Coincidentally the first commenter on the third link above makes the same connection between data stored on the cloud and papers or other materials stored in your apartment.