If your cloud service provider sounds like your local weather reporter – partly cloudy with a chance of rain – you may be in for a data security storm. A USA Today guest essay by Rajiv Gupta highlights the need for a multi-layered approach for cloud providers to ensure data stored in the cloud is secure, something we’ve touched upon here before. Businesses need greater certainty concerning the security of their data in the cloud and should be pressing their cloud providers for a security forecast with more certainty than their local weather report.

As Mr. Gupta notes, “by 2020 nearly 40% of the information in the digital universe will be touched by cloud computing providers.” Many businesses recognize this trend and may already have business data and applications in the cloud. However, some may not realize that some of their data is in the cloud without their knowledge or authorization, and without having had an opportunity to vet the provider(s). For example, it has been found that as many as 1 in 5 employees use commercial cloud providers to store company information.

Mr. Gupta discusses a number of tactics cloud providers should employ to secure data in the cloud – encryption, contextual access control, data loss prevention technologies, audit trails, and enforcement of security policies from application to application. Good advice for cloud providers. But customers of the cloud need to think a little differently.

Purchasers of cloud data storage services need to have a sense of the multiple layers of security tactics that are recommended for cloud providers and see to it that their provider(s) have them in place. But they also need to be thinking about:

  • What protections does their company have if the cloud provider’s systems are breached?
  • Does the services agreement with the cloud provider adequately address security, data breach, indemnity, reporting and so on?
  • What policies do they have for their employees concerning the privacy, security, integrity and accessibility of company data when using the cloud? And, which cloud should they be using?
  • How would employees’ use of their personal commercial cloud services complicate a company’s litigation hold processes?
  • Who at the company and at the cloud provider has/should have access to the data?
  • Is the cloud service provider a business associate/subcontractor under HIPAA, prepared to comply with the HITECH Act? What about the agreement requirements under state law?
  • Where is the data stored? Is it in the United States, or in a foreign country subject to different data security standards?
  • What if the cloud goes down, out of business? Will company data and applications be accessible?
  • Are the businesses’ customers and clients on board with use of the cloud for their data?

These are just some of the key questions businesses should be asking about concerning use of the cloud. The technology can indeed yield substantial cost savings, but the failure to think carefully about its adoption and implementation can create substantial exposure for the company.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.