The following is an excerpt from De Filippi, P, Belli, L, ‘Law of the Cloud v Law of the Land: Challenges and Opportunities for Innovation’, European Journal for Law and Technology, Vol. 3, No. 2, 2012. The re-posting of this excerpt is part of a cross-posting collaboration with MediaLaws: Law and Policy of the Media in a Comparative Perspective.

Cloud computing represents an innovative use of information and communication technologies which has drastically modified the way in which computing resources are used and deployed over the Internet.

INTRODUCTION

Cloud computing represents an innovative use of information and communication technologies which has drastically modified the way in which computing resources are used and deployed over the Internet. Hardware and software resources are delivered on demand through the Internet, eliminating the need for users to purchase expensive computers and/or software applications. Similarly, data need no longer be stored on users’ devices; they can be exported in large data-centres where they can be easily processed by Cloud operators. Consequently, the decentralized structure of the Internet (built on the ‘end-to-end’ principle) is slowly being supplanted by increasingly large and centralized infrastructures (designed around the concept of ‘mainframes’).

The first section of this paper will analyse how this shift may affect the fundamental rights of users, mainly with regard to the right of privacy and freedom of expression. Indeed, given that they control most of the data passing through their platforms, Cloud providers have the ability to infringe users’ rights – e.g. by collecting and/or processing personal data without authorisation, or arbitrarily censoring certain types of communication.

Theoretically, it could be assumed that, in a competitive market, market players will eventually be forced to adapt to users demands and expectations in order not to lose market share. Yet, the Cloud market is an oligopolistic market dominated by a few large corporations concerned with the maximization of their own profits. The second section of this paper will examine the behaviour of these market players, and how they contribute to increasing or preserving their market share both by locking users into their systems and by claiming priority access to the network – without paying particular concern to the fact that their activities might impinge upon users’ privacy and freedom of expression.

Finally, the last section will address the potential solution that may be endorsed in order to preserve the fundamental rights of users, without constraining innovation. After addressing the distinction between ex-ante regulation (e.g. through the definition of net neutrality rules) and ex-post regulation (e.g. by means of competition law, consumer protection law, etc.), the paper will assess their corresponding benefits and drawbacks so as to determine whether either of them, or a combination of the two, could successfully preserve users’ right without excessively limiting the operations of Cloud providers. Finally, the paper will explore the viability of alternative forms of regulation based on self-regulation and technical regulation by end-users. Indeed, users are becoming increasingly aware of the risks derived from Cloud computing, and are developing specific technologies and software applications in order to counteract the negative effects that certain Cloud services might have on their fundamental rights. Rules are, consequently, no longer dictated by Cloud operators in a top-down fashion; they are, instead, established by the users themselves through a bottom-up approach.

Luca Belli is a PhD candidate in Public Law at PRES Sorbonne University / Université Panthéon-Assas / CERSA; ISOC returning Ambassador to the United Nations Internet Governance Forum and member of the Steering Committee of  www.medialaws.eu.

Primavera De Filippi is a researcher at the CERSA / CNRS / Université Paris II; representative of CreativeCommons France and coordinator of the Public Domain working group at the Open Knowledge Foundation.