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the 4th Amendment was developed at a time when the only privacy was spatial privacy; for something to be private, I had to keep it IN my home or office (and maybe in a locked chest), which both made it difficult for law enforcement officers to gain access to it and symbolically invoked my right to assume they wouldn’t gain access to it. (In other words, I could assume privacy.)

our lives have already moved far beyond spatial privacy; I talked about the 4th Amendment’s application to the contents of emails and what we do online -- arguing that it should apply to both, but noting that courts so far do not tend to agree. I think cloud computing will take this analysis to the next level.

My point is that even under current 4th Amendment law, I can make what I think are valid arguments as to why the 4th Amendment should apply to data stored in a cloud (as long as the appropriate conditions exist). I really think, though, that we shouldn’t be using cases that were decided thirty years ago or a hundred and thirty years ago to set the standard for 4th Amendment privacy in an era of advancing technology. As I argued in that law review article, I think we need to move beyond a purely spatial approach to privacy to approaches that encompass both spatial and non-spatial privacy.

Cloud Computing Poses E-Discovery, Legal Risks April 10, 2009By Marty Foltyn ORLANDO, Fla. — Cloud computing was a hot topic at this week's Storage Networking World show, but one attorney sounded a warning note about the rush to the cloud. In a presentation titled "Computing (strike that — Litigation) in the Cloud," Steven Teppler, senior counsel at KamberEdelson in New York, said cloud computing and services are a corporate counsel's nightmare. The 2006 e-discovery amendments to the Federal Rules of Civil Procedure (FRCP) changed the legal and corporate information landscape, putting custody and control at top of mind. "Cloud computing means that data may always be in transit," said Teppler, "never anywhere, always somewhere." And that creates a big challenge for corporate counsel. How can they identify "who, when and where" in the cloud? How can organizations handle document retention? And to add another layer of worry, information targeted for the cloud may also be subject to laws requiring privacy and persistent data integrity, and other requirements that the storage manager may not even be aware of. Teppler spelled out the top cloud computing shortcomings: no native security attributes; inadequate or no security provisioning by providers; the lack of understanding of cloud legal issues (a real problem for not only cloud computing providers, but also corporate counsel and IT consultants); and the failure to recognize potential liability from either legal issues or a lack of security. Teppler told the audience that litigation in the cloud is already here. Users of cloud services will need to insist on service level agreement (SLA) terms with their providers to ensure legal and regulatory compliance, searchability, demonstrable customer care (security), provably persistent data integrity and reliability, and demonstrable storage security and integrity for electronically stored information in the cloud.