Home' Campus Technology : July 2013 Contents It's easier said than done---from a legal standpoint, the water
is pretty murky. For starters, the laws are still evolving. Much
about cloud computing "is new stuff," says Justin Bathon, an
assistant professor in the department of Educational Leader-
ship Studies at the University of Kentucky. "In other areas of
education law there have been years of litigation, so you have a
pretty good base from which to predict how new things will be
handled." With cloud services, on the other hand, technology
can be way ahead of the law. "It'll take three or four years [for
the law] to finally catch up with the actual technology problems
we're having today," he continues.
Complicating matters further is the fact that many col-
leges and universities are public entities, governed by state
codes that are enormous in scope. Yet the number of law-
yers available to public institutions is very limited, espe-
cially compared to equivalent-sized corporations. The gen-
eral counsel office at UK, for example, has just four or five
people representing a $2 billion organization with tens of
thousands of students. As a result, says Bathon, only "a
handful of people at any moment are up to speed on the
legal issues." Not surprisingly, the crush of legal work can
put public institutions at a disadvantage when it comes to
tackling the myriad legal aspects of cloud computing.
This pressure makes it all the more important for legal teams
to take the time needed to negotiate cloud contracts properly.
Get the contract right, and the legal team can move on to more
pressing matters. From a legal perspective, dealing with cloud-
based service providers is "almost all contractual, frankly," says
attorney Adam Chase of the law firm Dow Lohnes. "Your legal
relationship with a vendor is governed by a contract." In fact,
Chase likens the use of cloud services to a form of outsourc-
ing: The school is "having someone else do something for it
that it used to do itself, and it gives up a bit of control."
Fortunately, outsourcing is something that's been around
for a long time, so the legal groundwork has been laid for
at least some aspects of cloud contracts. But there are still
plenty of issues in legal limbo to keep lawyers up at night.
Here, we examine six common contract concerns and how
schools might address them.
1) Boilerplate Contracts
A lot of service providers want to use their own contracts.
No modifications required---just sign on the dotted line. But
should you? Schools need to remember that vendor con-
tracts are designed primarily to protect the vendor rather
than the customer, and probably need some modification
to serve both parties. As Bathon explains, a good contract
should ideally pass on to the cloud-service provider "all the
regulatory responsibilities that a public [school] would feel."
Unfortunately, that's often not the case. Given small legal
staffs and the inevitable fires that break out on a day-to-day
basis, notes Bathon, many schools have little time to "nego-
tiate a contract, so [they] go with whatever terms of service
a cloud provider has."
As a result, the school is "taking responsibility that the
private company will protect the data." If the data is trifling,
this may be OK (think student clicker responses in class).
But such an approach is woefully inadequate in situations
requiring more stringent security.
"We frequently have contracts with the Department of De-
fense and NASA where security is really essential," explains
Bathon, adding that concerns go well beyond government
data. "We're also a healthcare institution. We're in a lot of
business categories these days where the cloud is a really
important part of what we do. From a CIO standpoint, put-
ting maximum attention on data security is really important."
The only way to achieve the necessary level of security is
to push for modifications to a vendor's boilerplate agree-
ment. If you're a big enough customer, even the largest
providers---Amazon and Google among them---may agree
CAMPUS TECHNOLOGY | July 2013
A company might say, "We'll give you what Amazon gives us, but we
can't give you more." If this sounds reasonable, you're not an attorney.
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