UK: Cloud Computing And Data Sovereignty - Blog

Last Updated: 4 November 2015
Article by Richard Kemp

The UK Investigatory Powers Bill to be published on 4 November comes at a critical time in the development of cloud computing

2 November was the second great, if less well known, British legal birthday of 2015, the 250th anniversary of Lord Camden's judgment in Entick v Carrington in 1765. 

In the timeless tussle between state surveillance powers and citizens' rights, this case concerned government attempts to stifle popular opposition voiced in pamphlets and coffee shops, the social media platforms of their day, by harrying the authors through general warrants to search and seize their papers and ransacking their homes.  Lord Camden, in ringing tones, held that:

"by the laws of England, every invasion of private property, be it ever so minute, is a trespass. ... If [a man] admits the fact, he is bound by law to show by way of justification that some positive law has empowered or excused him". 

The judge came down firmly on the side of the citizen, holding that the government agents claiming entry had failed to show proper authority and so were trespassing.

The case has been influential down the years in the UK, the USA and beyond but the principle never jumped from paper to telephone or data communications. This is because, in the UK, entry into homes to seize papers is historically based on the law of trespass, a property right, and the courts have never granted that protection to communications and data, preferring to leave that particular hot potato to the legislature.  This in turn explains why, oddly, there is no common law right to privacy under English law and why it has been left here to the Human Rights Act 1998, the Data Protection Act 1998 and the EU Charter of Fundamental Rights 2010, all comparatively recent and from Europe, to do the heavy lifting.

Meanwhile, communications, surveillance and the security agencies all emerged from behind the veil of the UK state into the open in the 1980s: the government telecoms monopoly was ended (1982) and British Telecom privatised (1984); the first statute regulating surveillance was passed (the Interception of Communications Act 1985, now the Regulation of Investigatory Powers Act 2000); GCHQ (the Government Communications Headquarters) was first avowed (1983), and the internal security service MI5 was put on a statutory footing (1989).

In June 2013, Edward Snowden revealed three large scale bulk data collection programmes – PRISM and UPSTREAM in the USA and TEMPORA in the UK.  Government had initiated these programmes between 2007 and 2011 for what they foresaw would be – and what is now – happening.  This is what has become known as the 'third platform' – the combination of:

  • big data (data volumes are increasing by 10 times every 5 years);
  • mobile (internet sensors will rise from 5bn to 2015 to 25bn by 2020);
  • social media; and
  • the move to the Cloud (think $1bn+, 100,000 server+, 1m sq ft+ hyperscale datacentres as the engine rooms of the cloud).

Snowden and the third platform provided the setting for three important European data and communications cases pitting state surveillance powers against citizens' rights.  In Digital Rights Ireland, the European Court of Justice (CJEU) in April 2014 struck down the EU Data Retention Directive, which required telcos to hold on to all customer metadata (message envelope data), as contrary to the fundamental rights of respect for private life and personal data in Articles 7 and 8 of the EU Charter.  In July 2015, the UK High Court struck down for similar reasons Section 1 DRIPA (the Data Retention and Investigatory Powers Act) 2014, which the UK government had rushed through in four days to fill the gap left by Digital Rights Ireland.  And last month, in the Schrems case, the CJEU again invoked the EU Charter's fundamental rights to strike down the US/EU safe harbour agreement on personal data transfers between the USA and EU.

All this has set the scene for the new UK Investigatory Powers Bill, to be published on 4 November. This promises to be an epic debate, with the government contending that risks from terrorism, cybercrime, data breaches, the dark net and encryption make broad investigatory powers indispensable and civil liberties groups arguing, in the longest tradition, for strict substantive and procedural safeguards.

What will all this mean for business and consumers?

The start point is a pragmatic approach to understanding data sovereignty risk management: these powers of the state have always been there, always will be.  And it's not just the USA and UK that have these laws – most countries do. This means that service providers, and hence their customers, are potentially subject to data collection and interception under many national laws including:

  • the laws of the country where the provider is headquartered;
  • the laws of the countries where the provider's data centres are located;
  • the laws of any country like the UK that claims extra-territorial interception powers;
  • the laws of any country imposing national data domiciliation requirements (like Russia, where since September personal data collected in Russia has to be stored on servers in Russia).   

On this approach, five changes to the current UK investigatory powers legal framework would see significant improvements and increased trust at this time of huge growth in the cloud:

  • first, the new statute should expressly recognise legal privilege – something which did not feature anywhere in the UK framework before this year;
  • second, greater accountability of government agencies through a higher level of judicial involvement in interception and communications data warrant authorisation and review will lead to greater legal certainty and trust;
  • third, greater transparency will allow providers to acknowledge more openly their interactions with state agencies, again increasing consumer trust;
  • fourth, better international cooperation between national agencies – the current MLAT system takes 10 months on average to process a request for emails, far too long for fast moving cyber investigations;
  • fifth, and perhaps most importantly, baking into the new law the fundamental principles and safeguards that the CJEU has said in its recent judgments are so crucial.

As the cloud becomes the new normal, and data sovereignty risks move up the corporate agenda, the data – not just the medium – is the message now.  In their important privacy rights judgments over the last 18 months, the CJEU has shown it grasps this better than anyone.  In another 250 years, will British citizens look back on their words with the same appreciation with which we look back to Lord Camden's in 1765?

If you would like to find out more about this topic, please see our October 2015 white paper on Cloud Computing and Data Sovereignty

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions