The Complexities of Cloud Computing - The Rules are New, But is the Game

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Cloud Computing has transformed the technology landscape. The question arises - what's really new here?

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The Complexities of Cloud Computing - The Rules are New, But is the Game

  1. 1. The Complexities of CloudComputing: The Rules areNew, But is the Game?Janine Anthony Bowen, Esq., CIPP/USjbowen@jack-law.com(678) 823-6611June 8, 2012
  2. 2. Seems like the inevitable… Source: http://geekandpoke.typepad.com; The Lighter Side of the Cloud by CloudTweaks – David Fletcher. Used under Creative Commons License 2
  3. 3. The Cloud…in all its Glory! 3
  4. 4. The Hype Then…• “As enterprises seek to consume their IT services in the most cost- effective way, interest is growing in drawing a broad range of services (for example, computational power, storage and business applications) from the "cloud," rather than from on-premises equipment. The levels of hype around cloud computing in the IT industry are deafening, with every vendor expounding its cloud strategy and variations, such as private cloud computing and hybrid approaches, compounding the hype.”• Gartner Press Release, Gartner’s 2009 Hype Cycle Special Report Evaluates Maturity of 1,650 Technologies, August 11, 2009 http://www.gartner.com/it/page.jsp?id=1124212 4
  5. 5. And Now…• According to Forbes… “Interest in Cloud Computing Has Peaked”• But Never Fear…its here to stay (for now anyway)http://www.forbes.com/sites/reuvencohen/2012/05/24/interest-in-cloud-computing-has-peaked/ 5
  6. 6. Agenda•Overview of Cloud Computing•Contractual Considerations•Due Diligence•Business Considerations•Take Aways 6
  7. 7. Cloud Computing Plain English Definition• From the User’s Perspective – Data processing and storage, application development, and software hosting over the Internet instead of on a personal computer or over a business’ network – Available on an ‘on demand’ basis – Location of information stored ‘in the Cloud’ is potentially unknown at any given point in time – Relatively inexpensive 7
  8. 8. National Institute of Standards & Technology’s Definition• Cloud computing is a model for enabling ubiquitous, convenient, on- demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction. This cloud model promotes availability and is composed of five essential characteristics, three service models, and four deployment models.• http://csrc.nist.gov/publications/nistpubs/800-145/SP800-145.pdf 8
  9. 9. NIST Definition (cont)• Essential Characteristics • Deployment Models – On-demand self-service – Private Cloud – Broad network access – Community Cloud – Resource pooling – Public Cloud – Rapid elasticity – Hybrid Cloud – Measured Service 9
  10. 10. Three Service ModelsSaaS (Software as a Service)The consumer uses theprovider’s applications runningon a cloud infrastructure. (e.g.Google Apps)PaaS (Platform as a Service)The consumer has control overthe deployed applications andpossibly application hostingenvironment configurations.(e.g. Force.com)IaaS (Infrastructure as a Service)The consumer is able to deployand run arbitrary software. (e.g.Amazon EC3) 10
  11. 11. Virtual Server 11
  12. 12. Multi-Tenancy Makes Public Cloud Computing Possible Single-Tenant Multi-Tenant (On-Premise or Hosted)Dedicated App Stack for Each Application One Single Stack for All ApplicationsSlide used with permission from Salesforce.com - © 2012 Salesforce.com 12
  13. 13. Multi-Tenant ABC Company User ABC Company XYZ Company Purchasing Purchasing XYZ Company Application Application User Acme Atlas Acme Company Company Company User Inventory Inventory Application Application Internet Connection Top-Notch Top-Notch Small Biz Company User Company Company Logistics Payroll Application Application Small Biz Company User Hypervisor Atlas Company Operating System User Virtual Server with Tenants Multiple Tenants 13
  14. 14. Contractual Considerations 14
  15. 15. How’s cloud computing different?• Geography – Data in the cloud can be anywhere; multiple copies can be in multiple locations• In current state of play cloud providers assume as little liability as possible – bulk of contract risk resides with the user• Difficult for a user to know where liability rests, even if it were properly assigned (e.g. Global Payments data breach earlier this year)• The nature of the potential legal issue depends on where a user plugs into the cloud (issues with SaaS may be different than with IaaS)• Virtually complete loss of control by data owner (who holds it and where is it?)• Relatively inexpensive OPEX instead of CAPEX 15
  16. 16. Cloud Contracting:Comparing Cloud to What We Knew Before Cloud Traditional Co- Hosting ASP Computing Software location LicensingLocation of unknown known known known knownService/DataOwner of provider/ company/ Company/ Provider/ Provider/HW/SW provider company Company Company provider (license) (license) (license)Contract Virtually negotiated negotiated negotiated negotiated non- negotiableContract Risk company shared shared shared sharedScalability yes maybe maybe maybe maybe 16
  17. 17. Understanding the Legal Risk Profile 17
  18. 18. Why not just rely on the contract? Who you are drives what you can expect• Cloud users should clearly understand what they are getting and getting into: – Generally speaking, only the largest implementations get negotiated contract terms (particularly wrt to SaaS) – Minimum negotiation flexibility likely in most cases – risk mitigation analysis should establish ‘business level’ comfort• Where negotiation is possible, risk mitigation should drive negotiation of key provisions – The best bang for the buck is internal process risk mitigation 18
  19. 19. Most Significant Issue with Cloud Computing: Privacy and Security• Gramm-Leach-Bliley Act • Federal Trade Commission (GLBA) Act (FTCA)• Health Insurance Portability • ID Theft Red Flags and Accountability Act • State Privacy Security Laws (HIPAA) (Breach Notification — 46 States• Health Information and Encryption (MA and NV), Technology for Economic and use of SSN’s, etc.) Clinical Health (HITECH) • Industry Standards (PCI)• Fair Credit Reporting • Litigation and enforcement cases Act/FACT Act 19
  20. 20. Case Study - Contract vs. What They Say •Privacy Policy •Terms of Use •Security FAQ •Pricing 20
  21. 21. Due Diligence 21
  22. 22. 4 Immutable Laws of Cloud Security• “These are things that will always be, things that will never change, and it is a state of being.” – First is an understanding that if your data is hosted in the cloud, you no longer directly control its privacy and protection. – when your data is burst into the cloud, you no longer directly control where the data resides or is processed. – if your security controls are not contractually committed to, then you may not have any legal standing in terms of the control over your data or your assets. – if you dont extend your current security policies and controls in the cloud computing platform, youre more than likely going to be compromised – Tari Schreider, HP chief architect of HP Technology Consulting and IT Assurance Practice. “Security and the Cloud: The Great Reconciliation”, eCommerce Times, 14 May 2012 http://www.ecommercetimes.com/story/Security-and-the-Cloud-The-Great- Reconciliation-75094.html 22
  23. 23. Quick List of Potential Diligence Considerations Functionality of solution Pricing Uptime Response time Quality of service Data Security/Privacy Backup and disaster recovery Integration with existing systems Data access Customer service/support Insurance coverageAdapted from “Evaluating SaaS Solutions: A Checklist for Small and Mid-sized Enterprises”http://www.saugatech.com/thoughtleadership/TL_October2009_Eval_SAP.pdf 23
  24. 24. Some Areas of Concern•Service quality/SLAs/Availability•Disaster recovery•Provider competence•Provider Viability 24
  25. 25. Diligence Considerations: SLAs• Control-oriented – System availability – System response time – Fail-over for disaster recovery• Operations-oriented – Data retrieval – Data integrity – Transition assistance• Business-oriented – Error resolution time – Timeliness re: professional services around cloud solutions 25
  26. 26. Diligence Considerations: Backup & Disaster Recovery• How are backup systems architected? – Complete redundancy? Multiple redundancies? Duplicate systems? Real- time backup?• Where are backup systems located geographically?• Are third party backup systems utilized (partially/totally)?• How long would a catastrophic event at a data center affect system availability?• Concerns for physical assets based on geography (exactly where is that data center located?)• Ultimately, whose responsibility is it anyway? 26
  27. 27. Diligence Considerations: Competence Issues• Provider track record of success?• Views of commentators/bloggers• Is the pricing right for the breadth of offering?• Perceived level of sophistication of the vendor – Knowledge of industry vertical – Mastery of technology• If vendor is an early stage company, who is supporting it financially? (speaks to both competence and viability)• For SaaS in particular, are there integration partners? 27
  28. 28. Diligence Considerations: Viability of the Cloud Provider• Viability matters. Why? A cloud user makes an investment when choosing cloud provider. For example: – Integrating cloud services into business processes – Migrating data from its environment• Lack of industry standardization makes moving to a new cloud provider difficult• What happens to a cloud user’s data in the event of: – Bankruptcy – M&A – Escrow 28
  29. 29. Business Considerations 29
  30. 30. Benefits of Cloud Computing•Cost Avoidance/Deferral•Improved Organizational Agility•Focus on Core Business rather than IT 30
  31. 31. Cost Avoidance/Deferral – You Decide• Gartner says…IaaS isn’t less expensive, but it increases operational agility (1)• Computerworld says…Prepare for the real costs of cloud computing (2) – Moving and storing data, integrating apps from multiple vendors, testing software, rent & utilities• CIO says…CFOs and cloud computing have a love-hate relationship (3) – Variable pricing messes up cash flow projections – Capex vs. Opex• Booz Allen Hamilton says…savings range from 50% to 75% (4)• CloudU says…savings from 13% to 25% (5) 31
  32. 32. Cost Avoidance/Deferral – You Decide (cites)• (1) Lydia Leong, research VP at Gartner Group – http://www.formtek.com/blog/?p=2696, January 12th, 2012• (2) “Preparing for the real costs of cloud computing” Computerworld http://www.computerworld.com/s/article/359383/The_Real_Costs_of_Cloud_Com puting• (3) “Why CFOS and Cloud Computing Have a Love-Hate Relationship” CIO Magazine – www.cio.com/article/print/702074• (4) “The Economics of Cloud Computing” http://www.boozallen.com/media/file/Economics-of-Cloud-Computing.pdf• (5) “Cloudonomics: The Economics of Cloud Computing”http://broadcast.rackspace.com/hosting_knowledge/whitepapers/Cloudonomics- The_Economics_of_Cloud_Computing.pdf
  33. 33. Improved Organizational Agility •Use of Public Clouds or Virtual Private Clouds give organizations the ability to scale up or down when necessary •IT expense can be matched to: – Seasonal or cyclical requirements – Organizational growth or decline •Mobile workforce/workplace solutions may improve organizational productivity •Cloud environments support experimentation and ability to fail with low penalty33
  34. 34. Focus on Core Business •Organizations can focus on building the business they know •Organizations can leverage the best of breed in IT (and not try to be best of breed themselves) •Potentially better disaster recovery strategies utilizing cloud-based options34
  35. 35. Insurance Considerations •Cyber Risk •Privacy •E&O •Data Asset Protection •CGL 35
  36. 36. Take Aways• Be thoughtful about which parts of your business are cloud-worthy. All business processes are not suitable.• Have a plan to deal with mistakes that will happen in the cloud (business, technology, legal). What level of risk can you tolerate?• Work with your key internal and external advisors to think through your cloud strategy. A cross- functional strategy is in order. 36
  37. 37. Q&A Contact Me•Janine Anthony Bowen, Esq., CIPP/US jbowen@jack-law.com www.visualcv.com/jdabowen www.linkedin.com/in/jdabowen•678-823-6611•Twitter - @cloudlawyer•www.jack-law.comJACK Attorneys & Advisors: Technology/IP Law & the Business of Technology - Quite Simply, We Get It. 37

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