One of the features of Apple’s device that appeals to me is the new MobileMe service, where you can “access and manage your email, contacts, calendar, photos, and files at me.com,” according to Apple. More companies, among them Microsoft and Google, already allow people to store information and use common services online - or “in the cloud” - leading analysts to refer to the entire trend as “cloud computing”.
This iteration of “cloud computing” puts your personal data on an accessible server held by a third party, which you replicate on multiple machines and access from virtually anywhere. Putting aside the security, data storage, data retention, data destruction and other pesky issues associated with doing business in the cloud, one fundamental issue remains: Your data is being hosted, stored and transmitted through a third party. As far as the law is concerned then, that third party has control of your data and may therefore be subject to a subpoena for your data, often without your knowledge or ability to object.
On July 11, 2008, Steven Warshak, the president of a nutrition supplement company, learned the hard way about the dangers of using web-based email. On May 6, 2005, the government got such an order for the contents of his emails.
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Thus, in the case of email messages stored and sent in the cloud, the government doesn’t need a warrant, doesn’t need probable cause, and doesn’t need to provide the “owner” of the communications with notice. At least, not right away. Indeed, the government can request that the ISP “preserve” future communications that haven’t even been conceived of yet, so that the government may demand them if the situation warrants.
Contrast this procedure with that required by both the US Constitution and the rules implementing them. If the mail was, for example, stored not by an ISP, but rather on Warshak’s own internal mail server (and putting aside subpoenas to the recipients of the emails), the government would need a warrant, supported by probable cause - not just “reasonable grounds to believe” - with an oath or affirmation to a neutral magistrate. Under the Fourth Amendment, the warrant would have to specify exactly what was to be searched for and seized, and the evidence seized would have to be supported by probable cause. The warrant would have to be narrowly tailored to seize only the evidence for which there was probable cause, and could not be what the law calls a “general warrant”. Finally, the government would have to prepare an inventory of whatever was seized, and give a copy of the warrant and a receipt to the suspect.
The issue of copyright is a hot one in the UK right now and the government isn’t scared of getting involved. It has been putting huge amounts of pressure on ISPs to take action against alleged music file-sharers, so imagine, if you will, the beautiful crimson color Prime Minister Brown’s face will turn today when he is declared a pirate too.
