Legal Status of Cloud Provider

Kozhevnikova Yuliana

Unesco Chair on copyright

Institute of Legal Regulation

Higher School of Economics , Moscow, 2012

www.hse.ru

Higher School of Economics , Moscow, 2012

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Russia: (2012) there were seven powerful government data centers organized in Russia in July, providing with several cloud services on their basis, the Concept of a unified information system of the industry and healthcare modernization programs for 2011-2012 was passed, this Concept is built on cloud models and other patterns.

Программная инженерия

Higher School of Economics , Moscow, 2012

Russian Federal Law of 27.07.2006 N 149-FZ “On information, information technology and data protection” defines the legal status of two subjects: information owner and operator of the information system.

Unlike the operator of the information system within its traditional meaning, cloud provider is the intermediary between users and resources, and, as a rule, does not have direct access to the information that is processed by the user of the cloud. As a general rule, the task of cloud provider is to provide the resources (hardware and software) for the user’s self’-processing. – HOSTING provider?

Cloud Provider = Operator of the Information System?

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in accordance with Art. 29 of the Federal Law of 07.07.2003, № 126-FZ "On communication" and the Decree of the Government of the Russian Federation of 18.02.2005 № 87 "On approval of the list of communication services to be made in the license, and lists of license conditions activity of cloud providers can be recognized as a licensed activity to provide telematic services.

Higher School of Economics , Moscow, 2012

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In accordance with section 16 of the list of licensing conditions, approved by the Government of the Russian Federation of 18.02.2005 № 87, a communications operator, providing telematic services, should provide the subscriber (user):a) access to the network for the licensee;b) access to information systems, information and telecommunication networks, including the Internet;c) receiving and sending e-mails telematics.

Cloud Provider = Hosting Provider?

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Russian legislation stipulates the provisions about administrative and criminal liability, which may be applied in the cases of helding the cloud providers liable. In accordance with Part (clause, point) 2 of Art. 14.1 of the Code of Administrative

Offences doing business without a special permit (license), if such a permit (license) is required (mandatory), entails an administrative fine or sometimes confiscation. According to the Art. 171 of the Criminal Code of the Russian

Federation, doing business without a license in cases where such a license is required, if this business has caused great damage to individuals, organizations or to the state or such business is connected with receiving a great income - shall be

also punishable.

Higher School of Economics , Moscow, 2012

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On the 1 (first) of July, 2012 the European Commission Working Group, in accordance with Art. 29 of Directive 95/46/EC (Article 29 Data Protection Working Party), issued a formal Opinion 05/2012 on cloud technologies (Opinion 05/2012 on Cloud Computing), which emphasizes the responsibility of the cloud provider, specifying that he is responsible for the selection of sub-cloud provider and operator, providing technical functioning of the system, whose activity shall be carried out in compliance with the EU legislation.

Cloud Provider = Operator of the Information System/Hosting Provider?

Data protection

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The Federal Law of 27.07.2006 № 152-FZ "On Personal Data" (Law № 152-FZ). Some bylaws (for example, the Regulation on the methods and ways to protect the information in the information systems of personal data, approved by the order FSTEC from 05.02.2010 № 58) often establish the requirements contradicting with the provisions of the Law № 152-FZ, stipulating that conformity assessment or certification of equipment shall be carried out only by Russian authorities and organizations.

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