What is Cloud Law?
Law Lab co-director John Clippinger proposes a vision
By invoking "Cloud Law," I want to be clear that this is a statement of intent, an aspiration, an invitation to consider new ways of thinking about the law, rather than any claim about an existing practice or program. The notion of Cloud Law derives from cloud computing, something that is rapidly becoming a digital global infrastructure through the efforts of innovative upstarts-- including Cloudera, Cloudsoft, and Eucalyptus-- as well as established companies such as Amazon, Apple, Google, Intel, IBM, Akamai, Red Hat, and Microsoft.
Cloud computing is really a combination of many technologies such as grid computing, SAS, Web 2.0, and other technologies. The key characteristics of cloud computing are the ability to scale and provision computing power dynamically in a cost efficient way that is relatively easy and inexpensive to use. The cloud architecture itself can be private or open, the key feature being that the services are virtualized in that they can located anywhere and provided by anyone.
There is widespread recognition within the computer and open source community that there is a real need to keep cloud computing “open” so that there is no lock-in to proprietary clouds and that user/consumers could have complete choice and portability of their data. This view is embodied in the Open Cloud Manifesto (www.opencloudmanifesto.com) signed by over 77 companies – including large companies such as IBM, Akamai, Accenture, AT&T, EMS, Computer Associates, Cisco, SAP, and new startups such as Cloudera, CloudVu, and Metadot. The manifesto calls for a new set of principles “that must be followed to ensure the cloud is open and delivers the choice, flexibility and agility that organizations demand”.
One of the key points about cloud computing is that computing will eventually become like a utility, ubiquitous and easy to use. If one inserts the word "law" for "computing", you can get a sense of what Cloud Law would be like — a kind of "virtualized" resource that could be available anywhere, to anyone, at any time.
As in the case of software as service (SAS) offerings, there could be competing ways of drafting and delivering new kinds of law. Very importantly, one will not necessarily be stuck with a particular legal regime as dictated by one's physical circumstances. (See Paul Schiff Berman, Legal Pluralism, 2007) There is great potential in this vision, which suggests that the "rule of law" might be accessible as a software service anywhere on the planet where there is Internet.
As cloud computing becomes more pervasive, it will become not only a new global computing infrastructure, it will further digitalization and virtualization in all spheres of social, economic, cultural and civic life. New kinds of institutions and policies will need to be devised that span not just the physical and the digital, but the jurisdictions of nation states and international agreements, profoundly challenging time-honored notions of governance and sovereignty. Complex issues concerning privacy, security, and local jurisdiction are but the tips of the iceberg as new kinds of financial and technical services are designed to leverage—and exploit— the opportunities presented by globalized computing resources.
In order for cloud computing to achieve its promise, it will need to evolve a new service layer, what we call Cloud Law — principally, identity, authentication, dispute resolution, reputation, accreditation and governance services. As forms of digital enterprises evolve in the cloud, they will experiment with new legal mechanisms for contracting, governance, dispute resolution, and enforcement. Some of these mechanisms can be a developed within the context of traditional private law, but others will require new kinds of public and international law to sustain them. By encoding principles of transparency, accountability, recourse, self-healing, and non-coercion into the design of digital institutions, there is the prospect of bringing the rule of law to countries and situations where it has been absent.
