By José-Luis Piñar and Miguel Recio
In April, the Spanish Data Protection Agency (DPA) released several guidelines on cloud computing addressed, on the one hand, to providers of cloud computing services and, on the other hand, to their clients or users of those services.
It is important to highlight that the Spanish DPA also published in 2012 specific guidelines on cloud computing addressed to attorneys and law firms. Such guidelines were drafted by the Spanish DPA working together with the Spanish Bar Council. The guidelines are available, in Spanish, at the DPA´s website.
Guidelines for Providers of Cloud Computing Services
With regard to the guidelines for providers of cloud computing services, the Spanish DPA focuses on several key issues, such as the applicable law to the contract between the provider and user of cloud computing services. When the user of such services is a controller regulated under the Spanish law, then the Spanish Organic Law 15/1999 of December 13 on the Protection of Personal Data and its regulation do apply. In this case, the applicable law is not negotiable between the parties and they cannot choose a different law in the contract that governs the cloud computing services.
According to the Spanish law on data protection, the provider is considered as a processor and therefore must follow the instructions provided by the controller.
In addition, providers of cloud computing services must act with due diligence when facilitating information to their clients so they can make a decision about the services. In other words, among other aspects of the contract, a provider must facilitate enough and clear information about the deployment model—private, community, public or hybrid cloud—services and, in particular, guarantees offered. Therefore, the provider must act with transparency when providing information about the services offered.
And with regard to the contract between the provider of cloud computing services, as a processor, and the client, as a controller, the guidelines point out that it must fulfill the requirements of the Organic Law 15/1999 and its regulation.
Lastly, the guidelines focus on the legal provisions that providers must fulfill when providing cloud computing services to public administrations, as specific rules apply to the contract.
Guidelines for Clients or Users of Cloud Computing Services
These guidelines, more extensive than the guidelines for providers, begin with the definition of cloud computing, figures, models of deployment and service models.
The guidelines are addressed to clients or users of cloud computing services, both private organizations and public administrations, which are under the Spanish law.
In particular, the Spanish DPA focuses on several key issues to be considered when contracting cloud computing services, such as information portability, data transfers to sub-processors, localization of personal data, security measures, contractual guarantees and cloud computing risks.
As in the case of providers of cloud computing services, clients or users of such services must act with due diligence requesting to their providers enough information about the contract terms and the guarantees that they offer.
When contracting cloud computing services, users should consider from the beginning information portability. This is a key issue as a client could face difficulties or even lose information if the provider does not offer enough guarantees in the contract. According to the Spanish DPA, a client might even have to pay large amounts to recover personal data.
In regard to localization of personal data, the guidelines remind that data transfers to countries outside the European Economic Area—EU countries and in addition Iceland, Liechtenstein and Norway—that do not ensure an adequate level of protection according to the European Directive 95/46/EC are required to provide special guarantees.
The Spanish DPA alerts also to clients or users of cloud computing services on several risks. Among those risks, users should consider transparency and control. Transparency does mean that some providers of cloud computing services, when offering such services, might not facilitate all details about what, who, how and where the services are provided, so clients could not make a decision based on the existing risks and adopt adequate controls. And control means that the user, when not receiving enough information from the provider, could lose it so he does not know where the personal data are located, how to access or even recover them. And those are barriers or obstacles for an effective management of the processing of personal data.
In addition, the guidelines include a strategy for clients or users of cloud computing services and several key FAQs that they should consider when contracting such services.
In conclusion, two interesting and helpful guidelines for providers of cloud computing services and their clients or users to be taken into consideration when offering or contracting, respectively, cloud computing services. Both guidelines, for providers of cloud computing services and their clients, are available, in Spanish, at the DPA's website.
Jose-Luis Piñar Mañas, PhD, is an attorney at Piñar Mañas & Asociados Law Firm and a professor of administrative law in CEU-San Pablo University, Madrid. He directs an international research project on data protection, transparency, security and the market. He also is the former director of the Spanish Agency for Data Protection and former vice-chairman of the Article 29 Working Party and the first president of the Ibero-American Network of Data Protection. He can be reached at firstname.lastname@example.org.
Miguel Recio, LLM, in Intellectual Property from The George Washington University Law School. He is a Spanish attorney specializing in data protection, privacy and other areas related to ICT Law. He works at Global Data Protection Consulting, based in Madrid, Spain. He can be reached at email@example.com