Cloud Computing and Electronic Discovery E-Book

James P. Martin

• Herausgeber: John Wiley & Sons
• Kategorie: Fachliteratur
• Serie: Wiley CIO
• Sprache: Englisch

Seitenzahl: 382

Veröffentlichungsjahr: 2014

Beschreibung

Explore the frontier of electronic discovery in the cloud Cloud Computing and Electronic Discovery comprehensively covers the quickly-evolving realm of eDiscovery in cloud computing environments, a computing and legal frontier in which the rules and legal precedents are being developed anew seemingly by the day. The book delves into this fascinating and rapidly-developing topic to prepare fraud investigators, legal professionals, forensic accountants, and executives understand the ramifications of storing data with third party providers and how such storage mechanisms relate to the limits of discovery practices. This up-to-date resource also includes a complete discussion of the few existing legal precedents and current cases that are shaping interpretation of discovery laws in the cloud space, a perfect overview for executives storing their companies' data in the cloud and the legal professionals tasked with understanding and interpreting the discovery rules surrounding that data. The book is comprehensive in scope and includes: * An overview of current trends in cloud computing, including potential information that should be considered in an investigation that involves data held by a cloud service provider * Updates on current and proposed laws governing discovery of information held by a third party cloud service provider * Updates on legal cases that address the issues of the Electronic Communication Privacy Act, the Federal law prohibiting release of information by a third party provider * Practical guidance on how to consider the availability of cloud data relevant to an investigation, and how to include this data in discovery plans For business, accounting, and legal professionals, Cloud Computing and Electronic Discovery is an invaluable resource for understanding the nuanced development of cloud eDiscovery policies, practices, and law as they continue to unfold and develop.

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CLOUD COMPUTING AND ELECTRONIC DISCOVERY

James P. Martin

Harry Cendrowski

Cover image: © istock/polygraphus Cover design: Wiley

Copyright © 2014 by John Wiley & Sons, Inc. All rights reserved.

Published by John Wiley & Sons, Inc., Hoboken, New Jersey. Published simultaneously in Canada.

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Library of Congress Cataloging-in-Publication Data:Martin, James P., author.     Cloud computing and electronic discovery/James P. Martin, Harry Cendrowski.        pages cm     Includes bibliographical references and index.     ISBN 978-1-118-76430-5 (cloth); ISBN 978-1-118-94745-6 (ebk); ISBN 978-1-118-94744-9 (ebk) 1. Cloud computing—Law and legislation—United States. 2. Electronic discovery (Law)—United States. 3. Privacy, Right of—United States. 4. United States. Electronic Communications Privacy Act of 1986. I. Cendrowski, Harry, author. II. Title.     KF390.5.C6M365 2014     347.73′72—dc23

2014013668

CONTENTS

PREFACE

Notes

ACKNOWLEDGMENTS

SECTION ONE Cloud Computing: Basics of Technologies and Applications

CHAPTER 1 Cloud Computing Definitions and Technical Considerations

IaaS

PaaS

SaaS

Considerations for Discovery

Data Transfer Regulations

Notes

CHAPTER 2 The Proliferation of Data Available for Discovery

An Example of Third-Party Data: Google Search Engine

Consideration of Data Points in Discovery

Creating an eDiscovery Plan in a Cloud-Based World

Production of Cloud Data

Notes

CHAPTER 3 Cloud Migration and Planning for Retention

Data Retention and the Cloud

Considerations for Litigation

Notes

SECTION TWO Current Laws Affecting Discovery

CHAPTER 4 Brief History of Privacy and Selected Electronic Surveillance Laws

Communications Act of 1934

Title III—Omnibus Crime Control and Safe Streets Act, 1968

Advancements in Telephone System Technologies

Electronic Communications Privacy Act of 1986

Notes

CHAPTER 5 Electronic Communications Privacy Act

Title II—The Stored Communications Act

§2703—Required Disclosure of Customer Communication or Records

Backup Provisions

Electronic Storage and the Ninth Circuit

Pen Registers and Trap and Trace Devices

Production Demands and the ECPA

Notes

CHAPTER 6 Proposed Legislative Changes and Future Laws

Points for Improvement

Congressional Action

Notes

CHAPTER 7 The Control Concept and Related Issues

The Application of Rule 34(a)

Rule 34(a) in Litigation

Flagg—A Modern Day Approach

Notes

CHAPTER 8 Current Issues in Cloud Data

Cell Tower Data and Location Information

StingRay and Location Monitoring

BYOD Policies and Data Ownership

Notes

CHAPTER 9 The Rise of Social Media and Its Role in Litigation

Roots of Social Media

Why, How, and When to Access Data on Social Media in Litigation

Obligations to Preserve Evidence

Accessing Social Media

Using Social Media in Litigation

Notes

SECTION THREE Relevant Cases

CHAPTER 10 Modern Case Analysis Shaping Litigation

O’Grady v. Superior Court

, 139 Cal.App.4th 1423 (2006)

Krinsky v. Doe 6

, 72 Cal.Rptr.3d 231 (2008)

Flagg v. City of Detroit,

252 F.R.D. 346 (E.D. Mich 2008)

Warshak v. United States,

631 F.3d 266 (6th Circ. 2010)

Ehling v. Monmouth-Ocean Hospital

, 872 F.Supp.2d 369 (D.N.J. 2012)

Juror Number One v. California

, 206 Cal.App. 4th 854 (2012)

Summary of Cases

Notes

CHAPTER 11 Cloud Computing and Reasonable Expectations of Privacy: Fourth Amendment Concerns

Ex Parte Jackson

, 96 U.S. 727 (1877)

Olmstead v. United States

, 277 U.S. 438 (1928)

Katz v. United States

, 88 S.Ct. 507 (1967)

United States v. Miller

, 425 U.S. 435 (1976)

United States v. Jacobsen

, 466 U.S. 109 (1984)

United States v. Jones

, 132 S.Ct. 945 (2012)

Summary of Cases

Notes

CHAPTER 12 Compelled Production of Cloud Computing Data: Fifth Amendment Concerns

United States v. Doe

, 465 U.S. 605 (1984)

Doe v. United States

, 487 U.S. 201 (1988)

United States v. Hubbell

, 530 U.S. 27 (2000)

In re Boucher

, 2009 WL 424718 (D. Vt. 2009)

In re Grand Jury Subpoena Duces Tecum, March

25, 2011, 670 F.3d 1335 (11th Circ. 2011)

Notes

ABOUT THE CONTRIBUTORS

ABOUT THE AUTHORS

ABOUT THE COMPANION WEB SITE

INDEX

END USER LICENSE AGREEMENT

List of Tables

Chapter 10

Table 10.1

Chapter 11

Table 11.1

Guide

Cover

Table of Contents

Preface

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PREFACE

In general, cloud computing describes technologies that allow applications and data to be hosted on a computer external to a business’s own computing resources and firewall (i.e. a “remote computer”). From a personal perspective, it means that an individual can have access to convenient solutions for little or no cost, for example, to host family photos or videos. One of the promises of cloud computing is the end user doesn’t really need to know how it works, or where the data resides; it just works, and will be available when you need it, wherever you need it. This promise has also resulted in profound misunderstandings of what cloud computing actually involves, and what it means from a litigation perspective.

Cloud computing services provide computing resources on an as-needed basis; this is why cloud computing was sometimes referred to as utility computing, a term that certainly did not have the marketing cachet of cloud computing. Cloud computing solutions generally require a reasonable periodic service fee and little additional hardware cost to access a computing solution. The reduction of costly IT assets, avoidance of software license costs, and removal of software maintenance tasks provide an attractive economic model; the end user is given a turnkey solution supported and maintained by the service provider, and hosted at a remote location. Cloud computing is enabled by rapid, reliable Internet and mobile data communications, which means that applications and data are available “everywhere,” simultaneously, and transparently. The convenience and financial benefits of cloud solutions are changing business models fundamentally and have resulted in mass migration of data to the cloud. Much of this data, of course, would be of interest to parties during criminal proceedings or civil litigation.

A key issue from a legal perspective is that an investigator or litigant cannot access data held in the cloud through traditional discovery techniques. Discovery of data within a cloud computing solution likely falls under the restrictions of the Electronic Communications Privacy Act of 1986 (ECPA), 1 and specifically, Title II of the ECPA, which is called the Stored Communications Act (SCA).2 Under the SCA, third parties that provide communication services or remote computing services to the public are generally prohibited from releasing the data; the SCA defines a series of procedures for the government to access the data. This law, now almost 30 years old, is the primary law that regulates disclosure of such data. It was written at a time when telephones actually rang, when e-mail was considered a novel new technology for computer geeks, and when conversations on portable phones could be intercepted with a standard FM radio. Today, judges use this law to rule on cases involving data created and stored by devices that would have been considered magic (or certainly at least in the realm of science fiction) in 1986.

This book is our attempt to briefly explain the way that data held by a third-party provider (i.e., in a cloud computing solution) potentially affects legal proceedings and discovery of electronic information. This work is divided into three topical sections:

Section One explains the basics of cloud computing technologies, how data is stored, and (at a high level) the technical aspects of hosted solutions that can affect production of data. This is intended to be a technical guide for non-technicians, offering a brief glimpse behind the technological curtain.

Section Two describes the SCA as well as the prior laws that protected technological communications of the day. This will hopefully provide the reader with insights into legal concepts that still shape cases today, and the common themes of privacy issues. We also describe some of the limitations of the current laws in interpreting modern systems and devices.

Section Three surveys many of the precedent-setting cases involving interpretation of hosted data and access of such data by litigants or the government. Many of these cases are still active and may be modified on appeal. Rapid technological advancements mean that issues may arise that have not been previously considered by the courts in the current context, and interpretation in those situations can widely vary.

The issues presented here often walk hand-in-hand with privacy issues. However, we limit this discussion primarily to litigation settings. Recent revelations of widespread government surveillance programs are well beyond the scope of this work. We sincerely hope this book provides practical insight into the current world of hosted data and its potential impact on legal proceedings, and wish you the best as you encounter these issues in the future.

James P. Martin Harry Cendrowski May 2014

Notes

1

. 18 U.S.C. §§2510–2522.

2

. 18 U.S.C. §§2701–2712, although the term “Stored Communications Act” does not appear anywhere within the body of the legislation.

ACKNOWLEDGMENTS

We are sincerely grateful to many individuals for their unique contributions to this book as well as their steadfast support and encouragement. First and foremost, we would like to thank the Wiley team, including John DeRemigis, Sheck Cho, Stacey Rivera, and the staff at John Wiley & Sons for their assistance and support during the development and writing process.

We would also like to thank all the contributing authors and advisors to the process, without whom the production of this book would not have been possible:

Matthew P. Breuer

Deirdre Fox

Virginia Kim

Sarah Marmor

Christopher Thieda

Their professional insights and advice were instrumental in the production of this work, and their dedication and commitment are sincerely appreciated. Thank you also to the countless individuals who provided perspectives on the use of emerging technologies, expectations of privacy, and the proliferation of smart devices.

SECTION ONECloud Computing: Basics of Technologies and Applications

CHAPTER 1Cloud Computing Definitions and Technical Considerations

Thieda Christopher

The introduction of cloud computing has taken technology users by the hand and brought them into a new realm of possibilities. Whether the purpose is for personal, corporate use, or anything in between, today’s everyday tech users have been exposed to a multitude of cloud practicalities. Cloud computing applications allow computer users to conveniently rent access to fully featured applications, to software development and deployment environments, and to computing infrastructure assets such as network-accessible data storage and processing. Those that have exposure to common applications such as Google Apps or Microsoft Office 365 likely already have experience with cloud computing, even though they may not have realized it.