Legal Aspects regarding US Cloud Act and Gaia-X
Companies moving their systems to the cloud have concerns regarding access to their data through the US authorities enforcing the US Cloud Act when using American cloud service providers. Alternatively, European CIO’s call for a European cloud infrastructure like Gaia-X.
Gaia-X is a project for the development of an efficient and competitive, secure and trustworthy data infrastructure for Europe, which is supported by representatives of the German Federal Government, business and science. The goals of the project are to maintain European data sovereignty against oligopolistic tendencies in the platform economy, to reduce dependence on international providers, to make cloud services on a broad scale more attractive through more trustworthy service offerings and to create an ecosystem for innovation so that those who drive innovation are also those who benefit economically from it.
The project objectives are to be achieved by networking existing central and decentralized infrastructures to form a system, which together form a digital ecosystem. Features of this ecosystem are the use of secure, open technologies (for example Open Source, Open Hardware), independent, uniquely identifiable network nodes, software components from a common repository, services that are generally implemented as functions and a central function directory service (for example App Store) to make the service offerings in the system transparent and securely identifiable.
The success of the Gaia-X initiative is largely viewed skeptically because it needs cooperation between government, politics and business to increase Europe’s digital sovereignty.
The power of the US cloud companies in particular arouses suspicion because European companies fear access to their data by the US Cloud Act. Since moving to the cloud is increasing in Europe too, companies are concerned about the dependencies on providers from abroad and they fear the loss of control over their data due to the market power of foreign cloud platforms such as Microsoft, Oracle, Amazon/AWS, Google or Alibaba. They also see that sensitive data such as customer and employee data may not be sufficiently protected and from public administration authorities, the fear is regarding citizen’s data.
The US Cloud Act allows American authorities to access data in clouds of US providers – even if the data belongs to their customers and is stored outside the US.
This is a difficult situation since the cloud market is dominated by US based companies.
However, even if join forces with companies, government and politicians will eventually set up an European cloud, there is no guarantee that the European Union will be able to remain digitally independent. The potential collapse of the European Union is another risk and countries are planning for decentralized scenarios.
Swiss Clouds – solid as a bunker in the Alps?
When it comes to legal aspects in the cloud, data location, data storage and data protection became a hot topic. Sensitive data processed in the cloud, distributed systems as well as contract, consumer, competition and copyright law is also affected.
This is especially the case since the US Cloud Act and the European data protection regulation (GDPR) are not compatible plus it adds additional complexity from the Privacy Shield.
But how about Switzerland, which is not part of the European Union, where Swiss hosting and cloud providers promote their “Swissness” as a competitive advantage?
The “Swiss Hosting” label is aimed at Swiss SaaS and hosting providers and promises that there will be no data export, neither directly nor indirectly. This is relevant for cloud providers and cloud customers.
As of today, data can be exported from Switzerland to other countries when they have an adequate level of data protection. This is for example the case in the EU with the strict GDPR rules.
The Swiss Federal Data Protection and Information Commissioner keeps an overview of the countries with an adequate level of data protection. If a country does not meet the requirements, a contract must be drawn up between the companies involved to remedy the deficits in national legislation.
However, following standard contracts where these clauses are included, unfortunately does not have an effective protection against access by foreign governments.
Until recently, the so called Privacy Shield of 2016, an agreement between the USA and the EU, applied to the processing of exported data. There is a parallel agreement between the USA and Switzerland. The aim of the Privacy Shield was the responsible handling of data abroad and the protection of the privacy of citizens of the EU and Switzerland.
From the beginning, however, there were considerable doubts about its effectiveness. Now the European Court of Justice has officially confirmed that the Privacy Shield is not sufficient. Despite Switzerland is not in the EU, it is still expected that the Swiss version of the agreement will fall.
But at the same time, the ruling says that it is still possible to do business via standard clauses. But whether the USA is interested in contracts between two private companies in this context is a matter for each individual party to decide.
The question is whether the ruling applies to data that US companies hold outside the USA?
This gap was closed in 2018 by the Cloud Act. Before its introduction, an American company could refuse to release data held by a subsidiary abroad.
The Cloud Act clearly states that every American company must release data – regardless of whose territory it is located in.
The Cloud Act stipulates that bilateral agreements with other countries are possible to restrict this right of access, however no country has ever negotiated anything like this and it also applies to data stored by subsidiaries of international corporations on Swiss territory.
For example, if the Swiss Federal Data Protection and Information Commissioner attests India and China insufficient protection, the standard clauses are needed and on top of that, companies are obliged to make sure that the promised measures actually exist.
If you take the legal aspect of data export, companies are obliged, at least according to the basic European data protection regulation (GDPR), to have a data protection declaration stating whether data is being exported and customers are informed. However, an explicit consent is not required.
This is where Swiss hosting jumps in. Only Swiss law applies. For customers from the European area, the GDPR, which is even stricter than Swiss law, also applies.
Countries outside of the European area are allowed to access data on an official level through a secure evidence via mutual legal assistance and only according to the principle of dual criminality. This means that the offence must not only be punishable in the third country, but must also be a crime in Switzerland.
As a conclusion, can foreign authorities access the data?
First of all, the Swiss authorities will have access. However, the use of confiscated data does not mean that they are automatically available in a trial. A defendant can defend himself by means of various legal remedies. In addition to these legal remedies, a defendant is above all aware that access is available and can act accordingly. From a legal perspective, these are clear advantages as it prevents foreign authorities just to retrieve the data on the first attempt.