When your data's in the cloud, is it still your data?

Your contract with a cloud provider should have language clearly affirming your ownership of your data

When your data resides on a cloud provider's infrastructure, your ownership rights could be compromised. For example, what's to prevent the cloud provider from deciding to access your data and use it for its own purposes? That's why any contract for cloud services should include language clearly affirming your ownership of your data.

The good news is that well-established cloud vendors are beginning to include language along these lines in their standard contracts. For example, section 10.2 of the Amazon Web Services contract states:

"Your Applications, Data and Content. Other than the rights and interests expressly set forth in this Agreement, and excluding Amazon Properties and works derived from Amazon Properties, you reserve all right, title and interest (including all intellectual property and proprietary rights) in and to Your Content."

It hasn't always been this way with cloud computing, but as customers have voiced their ownership requirements, providers have made improvements in this area. As the cloud continues to evolve, if customers clearly state their needs, then smart cloud providers will listen and respond.

Depending on the nature of your data and how it's processed in the cloud, it may also be necessary for the contract to include language affirming your institution's ownership of the results of any processing of its data that occurs while on the cloud provider's system.

With ownership clarified, the next step is to identify the limitations on how the cloud provider may use your data. In most cases, you'll want to limit the provider's use solely to that which is necessary for it to fulfill its obligations under the contract. It is also prudent to specifically exclude the provider from any mining of your data.

Be ready for the divorce

Once your data and processes have moved to cloud, you become more dependent upon the provider. You could be locked into its services, a situation that increases the cloud providers leverage over you in negotiating contract terms.

I know this sounds like advising someone to find a divorce lawyer before getting married, but to mitigate the risk of vendor lock-in, you need to plan in advance for the eventuality that you may decide to switch to a different provider or bring your data and processes back in-house. With this in mind, the contract should state your rights to access your data on an ongoing basis. Specifically, the contract should:

* Describe the process by which your data will be returned, whether done midterm or upon contract termination.

* State the amount of time the provider will have to turn over your data.

* Specify that the data must be provided in a commonly used format that is pertinent to your expected needs, and not in a proprietary or otherwise inaccessible format.

* Define how long after termination of the contract your data will remain accessible.

* Quantify the cost to you (ideally none) to export your data.

Some vendors have begun to embrace these ideas. For example, see Google's Data Liberation Front efforts and Microsoft's Office 365 commitments regarding Data Portability.

Other access issues

When codifying your rights to access your data, be sure to consider emergency situations. For example, e-discovery obligations to preserve, collect and produce data for litigation-related discovery actions can be more difficult to comply with when your data is in the cloud, because you do not have direct control. Yet your failure to produce pertinent data in a timely manner can result in significant fines. This risk can be mitigated by contractually requiring the cloud provider to establish mechanisms by which you can retrieve your data within a specified time frame.

Finally, the contract should obligate the provider to destroy your data after termination of the contract and should specify the manner in which this should be done, the time frame for doing so, the need for the cloud provider to produce certification of destruction, and your right to audit.

Join me at UCLA on Jan. 19-20 for my seminar "Contracting for Cloud Computing Services."

Thomas Trappler is director of software licensing at the University of California, Los Angeles, and a nationally recognized expert, consultant and published author in cloud computing risk mitigation via contract negotiation and vendor management. For more information, please visit thomastrappler.com.

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