Feb 12 2012
Articles in this series...
- The cloud is not the problem–Part 1: Has it been here all along?
- The cloud isn’t the problem–Part 2: When complex technology meets process…
- The cloud is not the problem–Part 3: When silos strike back…
- The cloud is not the problem-Part 4: Industry shakeout and playing with the big kids…
- The cloud isn’t the problem–Part 5: Server huggers and a crisis of identity
- The cloud isn’t the problem–Part 6: The pros and cons of patriotism
Hi all and welcome to my 6th post on the weird and wonderful world of cloud computing. The recurring theme in this series has been to point out that the technological aspects of cloud computing have never really been the key issue. Instead, I feel It is everything else around the technology, ranging from immature process, through to the effects of the industry shakeout and consolidation, through to the adaptive change required for certain IT roles. To that end, in the last post, we had fun at the expense of server huggers and the typical defence mechanisms they use to scare the rest of the organization into fitting into their happy-place world of in-house managed infrastructure. In that post I made a note on how you can tell an IT FUD defence because risk averse IT will almost always try use their killer argument up-front to bury the discussion. For many server huggers or risk averse IT, the killer defence is US Patriot Act Issue.
Now just in case you have never been hit with the “…ah but what about the Patriot Act?” line and have no idea what the Patriot Act is all about, let me give you a nice metaphor. It is basically a legislative version of the “Men in Black” movies. Why Men in Black? Because in those movies, Will Smith and Tommy Lee Jones had the ability to erase the memories of anyone who witnessed any extra-terrestrial activity with that silvery little pen-like device. With the Patriot Act, US law enforcement now has a similar instrument. Best of all, theirs doesn’t need batteries – it is all done on paper.
In short, the Patriot Act provides a means for U.S. law enforcement agencies, to seek a court order allowing access to the personal records of anyone without their knowledge, provided that it is in relation to an anti-terrorism investigation. This act applies to pretty much any organisation who has any kind of presence in the USA and the rationale behind introducing it was to make it much easier for agencies to conduct terrorism investigations and better co-ordinate their efforts. After all, in the reflection and lessons learnt from the 911 tragedy, the need for for better inter-agency co-ordination was a recurring theme.
The implication of this act is for cloud computing should be fairly clear. Imagine our friendly MIB’s Will Smith (Agent J) and Tommy Lee Jones (Agent K) bursting into Google’s headquarters, all guns blazing, forcing them to hand over their customers data. Then when Google staff start asking too many questions, they zap them with the memory eraser gizmo. (Cue Tommy Lee jones stating “You never saw us and you never handed over any data to us.” )
Scary huh? It’s the sort of scenario that warms the heart of the most paranoid server hugger, because surely no-one in their right mind could mount a credible counter-argument to that sort of risk to the confidentiality and integrity of an organisations sensitive data.
But at the end of the day, cloud computing is here to stay and will no doubt grow. Therefore we need to unpack this issue and see what lies behind the rhetoric on both sides of the debate. Thus, I decided to look into the Patriot act a bit further to understand it better. Of course, it should be clear here that I am not a lawyer, and this is just my own opinions from my research and synthesis of various articles, discussion papers and interviews. My personal conclusion is that all the hoo-hah about the Patriot Act is overblown. Yet in stating this, I have to also state that we are more or less screwed anyway (and always were). As you will see later in this post, there are great counter arguments that pretty much dismantle any anti-cloud arguments that are FUD based, but be warned – in using these arguments, you will demonstrate just how much bigger this thing is beyond cloud computing and get a sense of the broader scale of the risk.
So what is the weapon?
The first thing we have to do is understand some specifics about the Patriot Act’s memory erasing device. Within the vast scope of the act, the two areas for greatest concern in relation to data is the National Security Letter and the Section 215 order. Both provide authorities access to certain types of data and I need to briefly explain them:
A National Security Letter (NSL) is a type of subpoena that permits certain law enforcement agencies to compel organisations or individuals to provide certain types of information like financial and credit records, telephone and ISP records (Internet searches, activity logs, etc). Now NSL’s existed prior to the Patriot Act, but the act loosened some of the controls that previously existed. Prior to the act, the information being sought had to be directly related a foreign power or the agent of a foreign power – thereby protecting US citizens. Now, all agencies have to do is assert that the data being sought is relevant in some way to any international terrorism or foreign espionage investigations.
Want to see what a NSL looks like? Check this redacted one from wikipedia.
A Section 215 Order is similar to an NSL in that it is an instrument that law enforcement agencies can use to obtain data. It is also similar to NSL’s in that it existed prior to the Patriot Act – except back then it was called a FISA Order – named after the Foreign Intelligence Surveillance Act that enacted it. The type of data available under a Section 215 Order is more expansive than what you can eke out of an NSL, but a Section 215 Order does require a judge to let you get hold of it (i.e. there is some judicial oversight). In this case, the FBI obtains a 215 order from the Foreign Intelligence Surveillance Court which reviews the application. What the Patriot Act did different to the FISA Order was to broaden the definition of what information could be sought. Under the Patriot Act, a Section 215 Order can relate to “any tangible things (including books, records, papers, documents, and other items).” If these are believed to be relevant to an authorised investigation they are fair game. The act also eased the requirements for obtaining such an order. Previously, the FBI had to present “specific articulable facts” that provided evidence that the subject of an investigation was a “foreign power or the agent of a foreign power.” From my reading, now there is no requirement for evidence and the reviewing judge therefore has little discretion. If the application meets the requirements of Section 215, they will likely issue the order.
So now that we understand the two weapons that are being wielded, let’s walk through the key concerns being raised.
Concern 1: Impacted cloud providers can’t guarantee that sensitive client data won’t be turned over to the US government
CleverWorkArounds short answer:
Yes this is dead-set true and it has happened already.
CleverWorkArounds long answer:
This concern stems from the “loosening” of previous controls on both NSL’s and Section 215 Orders. NSL’s for example, require no probable cause or judicial oversight at all, meaning that the FBI can issue these at their own volition. Now it is important to note that they could do this before the Patriot Act came into being too, but back then the parameters for usage was much stricter. Section 215 Orders on the other hand, do have judicial oversight, but that oversight has also been watered down. Additionally the breadth of information that can be collected is now greater. Add to that the fact that both NSL’s and Section 215 Orders almost always include a compulsory non-disclosure or “gag” order, preventing notification to the data owner that this has even happened.
This concern is not only valid but it has happened and continues to happen. Microsoft has already stated that it cannot guarantee customers would be informed of Patriot Act requests and furthermore, they have also disclosed that they have complied with Patriot Act requests. Amazon and Google are in the same boat. Google also have also disclosed that they have handed data stored in European datacenters back to U.S. law enforcement.
Now some of you – particularly if you live or work in Europe – might be wondering how this could happen, given the European Union’s strict privacy laws. Why is it that these companies have complied with the US authorities regardless of those laws?
That’s where the gag orders come in – which brings us onto the second concern.
Concern 2: The reach of the act goes beyond US borders and bypasses foreign legislation on data protection for affected providers
CleverWorkArounds short answer:
Yes this is dead-set true and it has happened already.
CleverWorkArounds long answer:
The example of Google – a US company – handing over data in its EU datacentres to US authorities, highlights that the Patriot Act is more pervasive than one might think. In terms of who the act applies to, a terrific article put out by Alex C. Lakatos put it really well when he said.
Furthermore, an entity that is subject to US jurisdiction and is served with a valid subpoena must produce any documents within its “possession, custody, or control.” That means that an entity that is subject to US jurisdiction must produce not only materials located within the United States, but any data or materials it maintains in its branches or offices anywhere in the world. The entity even may be required to produce data stored at a non-US subsidiary.
Think about that last point – “non-US subsidiary”. This gives you a hint to how pervasive this is. So in terms of jurisdiction and whether an organisation can be compelled to hand over data and be subject to a gag order, the list is expansive. Consider these three categories:
- - US based company? Absolutely: That alone takes out Apple, Amazon, Dell, EMC (and RSA), Facebook, Google, HP, IBM, Symantec, LinkedIn, Salesforce.com, McAfee, Adobe, Dropbox and Rackspace
- - Subsiduary company of a US company (incorporated anywhere else in the world)? It seems so.
- - Non US company that has any form of US presence? It also seems so. Now we are talking about Samsung, Sony, Nokia, RIM and countless others.
The crux of this argument about bypassing is the gag order provisions. If the US company, subsidiary or regional office of a non US company receives the order, they may be forbidden from disclosing anything about it to the rest of the organisation.
Concern 3: Potential for abuse of Patriot Act powers by authorities
CleverWorkArounds short answer:
Yes this is true and it has happened already.
CleverWorkArounds long answer:
Since the Patriot Act came into place, there was a significant marked increase in the FBI’s use of National Security Letters. According to this New York Times article, there were 143,000 requests between 2003 to 2005. Furthermore, according to a report from the Justice Department’s Inspector General in March 2007, as reported by CNN, the FBI was guilty of “serious misuse” of the power to secretly obtain private information under the Patriot Act. I quote:
The audit found the letters were issued without proper authority, cited incorrect statutes or obtained information they weren’t supposed to. As many as 22% of national security letters were not recorded, the audit said. “We concluded that many of the problems we identified constituted serious misuse of the FBI’s national security letter authorities,” Inspector General Glenn A. Fine said in the report.
The Liberty and Security Coalition went into further detail on this. In a 2009 article, they list some of the specific examples of FBI abuses:
- - FBI issued NSLs when it had not opened the investigation that is a predicate for issuing an NSL;
- - FBI used “exigent letters” not authorized by law to quickly obtain information without ever issuing the NSL that it promised to issue to cover the request;
- - FBI used NSLs to obtain personal information about people two or three steps removed from the subject of the investigation;
- - FBI has used a single NSL to obtain records about thousands of individuals; and
- - FBI retains almost indefinitely the information it obtains with an NSL, even after it determines that the subject of the NSL is not suspected of any crime and is not of any continuing intelligence interest, and it makes the information widely available to thousands of people in law enforcement and intelligence agencies.
Concern 4: Impacted cloud providers cannot guarantee continuity of service during investigations
CleverWorkArounds short answer:
Yes this is dead-set true and it has happened already.
CleverWorkArounds long answer:
An oft-overlooked side effect of all of this is that other organisations can be adversely affected. One aspect of cloud computing scalability that we talked about in part 1 is that of multitenancy. Now consider a raid on a datacenter. If cloud services are shared between many tenants, innocent tenants who had nothing whatsoever to do with the investigation can potentially be taken offline. Furthermore, the hosting provider may be gagged from explaining to these affected parties what is going on. Ouch!
An example of this happening was reported in the New York TImes in mid 2011 and concerned Curbed Network, a New York blog publisher. Curbed, along with some other companies, had their service disrupted after an F.B.I. raid on their cloud providers datacenter. They were taken down for 24 hours because the F.B.I.’s raid on the hosting provider seized three enclosures which, unfortunately enough, included the gear they ran on.
Ouch! Is there any coming back?
As I write this post, I wonder how many readers are surprised and dismayed by my four risk areas. The little security guy in me says If you are then that’s good! It means I have made you more aware than you were previously which is a good thing. I also wonder if some readers by now are thinking to themselves that their paranoid server huggers are right?
To decide this, let’s now examine some of the the counter-arguments of the Patriot Act issue.
Rebuttal 1: This is nothing new – Patriot Act is just amendments to pre-existing laws
One common rebuttal is that the Patriot Act legislation did not fundamentally alter the right of the government to access data. This line of argument was presented in August 2011 by Microsoft legal counsel Jeff Bullwinkel in Microsoft Australia’s GovTech blog. After all, it was reasoned, the areas frequently cited for concern (NSL’s and Section 215/FISA orders) were already there to begin with. Quoting from the article:
In fact, U.S. courts have long held that a company with a presence in the United States is obligated to respond to a valid demand by the U.S. government for information – regardless of the physical location of the information – so long as the company retains custody or control over the data. The seminal court decision in this area is United States v. Bank of Nova Scotia, 740 F.2d 817 (11th Cir. 1984) (requiring a U.S. branch of a Canadian bank to produce documents held in the Cayman Islands for use in U.S. criminal proceedings)
So while the Patriot Act might have made it easier in some cases for the U.S. government to gain access to certain end-user data, the right was always there. Again quoting from Bullwinkel:
The Patriot Act, for example, enabled the U.S. government to use a single search warrant obtained from a federal judge to order disclosure of data held by communications providers in multiple states within the U.S., instead of having to seek separate search warrants (from separate judges) for providers that are located in different states. This streamlined the process for U.S. government searches in certain cases, but it did not change the underlying right of the government to access the data under applicable laws and prior court decisions.
Rebuttal 2: Section 215’s are not often used and there are significant limitations on the data you can get using an NSL.
Interestingly, it appears that the more powerful section 215 orders have not been used that often in practice. The best article to read to understand the detail is one by Alex Lakatos. According to him, less than 100 applications for section 215 orders were made in 2010. He says:
In 2010, the US government made only 96 applications to the Foreign Intelligence Surveillance Courts for FISA Orders granting access to business records. There are several reasons why the FBI may be reluctant to use FISA Orders: public outcry; internal FBI politics necessary to obtain approval to seek FISA Orders; and, the availability of other, less controversial mechanisms, with greater due process protections, to seek data that the FBI wants to access. As a result, this Patriot Act tool poses little risk for cloud users.
So while section 215 orders seem less used, NSL’s seem to be used a dime a dozen – which I suppose is understandable since you don’t have to deal with a pesky judge and all that annoying due process. But the downside of NSL’s from a law enforcement point of view is that the the sort of data accessible via the NSL is somewhat limited. Again quoting from Lakatos (with emphasis mine):
While the use of NSLs is not uncommon, the types of data that US authorities can gather from cloud service providers via an NSL is limited. In particular, the FBI cannot properly insist via a NSL that Internet service providers share the content of communications or other underlying data. Rather [.] the statutory provisions authorizing NSLs allow the FBI to obtain “envelope” information from Internet service providers. Indeed, the information that is specifically listed in the relevant statute is limited to a customer’s name, address, and length of service.
The key point is that the FBI has no right to content via an NSL. This fact may not stop the FBI from having a try at getting that data anyway, but it seems that savvy service providers are starting to wise up to exactly what information an NSL applies to. This final quote from the Lakato article summarises the point nicely and at the same time, offers cloud providers a strategy to mitigate the risk to their customers.
The FBI often seeks more, such as who sent and received emails and what websites customers visited. But, more recently, many service providers receiving NSLs have limited the information they give to customers’ names, addresses, length of service and phone billing records. “Beginning in late 2009, certain electronic communications service providers no longer honored” more expansive requests, FBI officials wrote in August 2011, in response to questions from the Senate Judiciary Committee. Although cloud users should expect their service providers that have a US presence to comply with US law, users also can reasonably ask that their cloud service providers limit what they share in response to an NSL to the minimum required by law. If cloud service providers do so, then their customers’ data should typically face only minimal exposure due to NSLs.
Rebuttal 3: Too much focus on cloud data – there are other significant areas of concern
This one for me is a perverse slam-dunk counter argument that puts the FUD defence of a server hugger back in its box. The reason it is perverse is that it opens up the debate that for some server huggers, may mean that they are already exposed to the risks they are raising. You see, the thing to always bear in mind is that the Patriot Act applies to data, not just the cloud. This means that data, in any shape or form is susceptible in some circumstances if a service provider exercises some degree of control over it. When you consider all the applicable companies that I listed earlier in the discussion like IBM, Accenture, McAfee, EMC, RIM and Apple, you then start to think about the other services where this notion of “control” might come into play.
What about if you have outsourced your IT services and management to IBM, HP or Accenture? Are they running your datacentres? Are your executives using Blackberry services? Are you using an outsourced email spam and virus scanning filter supplied by a security firm like McAfee? Using federated instant messaging? Performing B2B transactions with a US based company?
When you start to think about all of the other potential touch-points where control over data is exercised by a service provider, things start to look quite disturbing. We previously established that pretty much any organisation with a US interest (whether US owned or not), falls under Patriot Act jurisdiction and may be gagged from disclosing anything. So sure. . .cloud applications are a potential risk, but it may well be that any one of these companies providing services regarded as “non cloud” might receive an NSL or section 215 order with a gag provision, ordering them to hand over some data in their control. In the case of an outsourced IT provider, how can you be sure that the data is not straight out of your very own datacenter?
Rebuttal 4: Most other countries have similar laws
It also turns out that many other jurisdictions have similar types of laws. Canada, the UK, most countries in the EU, Japan and Australia are some good examples. If you want to dig into this, examine Clive Gringa’s article on the UK’s Regulation of Investigatory Powers Act 2000 (RIPA) and an article published by the global law firm Linklaters (a SharePoint site incidentally), on the legislation of several EU countries.
In the UK, RIPA governs the prevention and detection of acts of terrorism, serious crime and “other national security interests”. It is available to security services, police forces and authorities who investigate and detect these offenses. The act regulates interception of the content of communications as well as envelope information (who, where and when). France has a bunch of acts which I won’t bore you too much with, but after 911, they instituted act 2001-1062 of 15 November 2001 which strengthens the powers of French law enforcement agencies. Now agencies can order anyone to provide them with data relevant to an inquiry and furthermore, the data may relate to a person other than the one being subject to the disclosure order.
The Linklaters article covers Spain and Belgium too and the laws are similar in intent and power. They specifically cite a case study in Belgium where the shoe was very much on the other foot. US company Yahoo was fined for not co-operating with Belgian authorities.
The court considered that Yahoo! was an electronic communication services provider (ESP) within the meaning of the Belgian Code of Criminal Procedure and that the obligation to cooperate with the public prosecutor applied to all ESPs which operate or are found to operate on Belgian territory, regardless of whether or not they are actually established in Belgium
I could go on citing countries and legal cases but I think the point is clear enough.
Rebuttal 5: Many countries co-operate with US law enforcement under treaties
So if the previous rebuttal argument that other countries have similar regimes in place is not convincing enough, consider this one. Lets assume that data is hosted by a major cloud services provider with absolutely zero presence in, or contacts with, the United States. There is still a possibility that this information may still be accessible to the U.S. government if needed in connection with a criminal case. The means by which this can happen is via international treaties relation to legal assistance. These are called Mutual Assistance Legal Treaties (MLAT).
As an example, US and Australia have had a longstanding bilateral arrangement. This provides for law enforcement cooperation between the two countries and under this arrangement, either government can potentially gain access to data located within the territory of the other. To give you an idea of what such a treaty might look like consider the scope of the Australia-US one. The scope of assistance is wide and I have emphasised the more relevant ones:
- (a) taking the testimony or statements of persons;
- (b) providing documents, records, and other articles of evidence;
- (c) serving documents;
- (d) locating or identifying persons;
- (e) transferring persons in custody for testimony or other purposes;
- (f) executing requests for searches and seizures and for restitution;
- (g) immobilizing instrumentalities and proceeds of crime;
- (h) assisting in proceedings related to forfeiture or confiscation; and
- (i) any other form of assistance not prohibited by the laws of the Requested State.
For what its worth, if you are interested in the boundaries and limitations of the treaty, it states that the “Central Authority of the Requested State may deny assistance if”:
- (a) the request relates to a political offense;
- (b) the request relates to an offense under military law which would not be an offense under ordinary criminal law; or
- (c) the execution of the request would prejudice the security or essential interests of the Requested State.
Interesting huh? Even if you host in a completely independent country, better check the treaties they have in place with other countries.
Rebuttal 6: Other countries are adjusting their laws to reduce the impact
The final rebuttal to the whole Patriot Act argument that I will cover is that things are moving fast and countries are moving to mitigate the issue regardless of the points and counterpoints that I have presented here. Once again I will refer to an article from Alex Lakatos, who provides a good example. Lakatos writes that the EU may re-write their laws to ensure that it would be illegal for the US to invoke the Patriot Act in certain circumstances.
It is anticipated, however, that at the World Economic Forum in January 2012, the European Commission will announce legislation to repeal the existing EU data protection directive and replace it with more a robust framework. The new legislation might, among other things, replace EU/US Safe Harbor regulations with a new approach that would make it illegal for the US government to invoke the Patriot Act on a cloud-based or data processing company in efforts to acquire data held in the European Union. The Member States’ data protection agency with authority over the company’s European headquarters would have to agree to the data transfer.
Now Lakatos cautions that this change may take a while before it actually turns into law, but nevertheless is something that should be monitored by cloud providers and cloud consumers alike.
So what do you think? Are you enlightened and empowered or confused and jaded?
I think that the Patriot Act issue is obviously a complex one that is not well served by arguments based on fear, uncertainty and doubt. The risks are real and there are precedents that demonstrate those risks. Scarily, it doesn’t make much digging to realise that those risks are more widespread than one might initially consider. Thus, if you are going to play the Patriot Act card for FUD reasons, or if you are making a genuine effort to mitigate the risks, you need to look at all of the touch points where service provider might exercise a degree of control. They may not be where you think they are.
In saying all of this, I think this examination highlights some strategy that can be employed by cloud providers and cloud consumers alike. Firstly, If I were a cloud provider, I would state my policy about how much data will be given when confronted by an NSL (since that has clear limitations). Many providers may already do this, so to turn it around to the customer, it is incumbent on cloud consumers to confirm with the providers as to where they stand. I don’t know if there is that much value in asking a cloud provider if they are exempt from the reach of the Patriot Act. Maybe its better to assume they are affected and instead, ask them how they intend to mitigate their customers downlevel risks.
Another obvious strategy for organisations is to encrypt data before it is stored on cloud infrastructure. While that is likely not going to be an option in a software as a service model like Office 365, it is certainly an option in the infrastructure and platform as a service models like Amazon and Azure. That would reduce the impact of a Section 215 Order being executed as the cloud provider is unlikely going to have the ability to decrypt the data.
Finally (and to sound like a broken record), a little information management governance would not go astray here. Organisations need to understand what data is appropriate for what range of cloud services. This is security 101 folks and if you are prudent in this area, cloud shouldn’t necessarily be big and scary.
Thanks for reading
p.s Now do not for a second think this article is exhaustive as this stuff moves fast. So always do your research and do not rely on an article on some guys blog that may be out of date before you know it.
- The cloud is not the problem-Part 4: Industry shakeout and playing with the big kids… (0.282)
- The cloud is not the problem–Part 3: When silos strike back… (0.237)
- Help me visualise the pros and cons of hybrid SharePoint 2013… (0.137)
- Is Azure Death Magnetic? (0.109)
- So what is this newfangled apps model anyway and why do I care? (part 2) (0.072)