I am a true believer in the disruptive value of cloud computing, especially the long term drive towards so-called "public cloud" services. As I've noted frequently of late, the economics are just too compelling, and the issues around security and the law will eventually be addressed.

However, lately there has been some interesting claims of the superiority of public clouds over privately managed forms of IT, including private cloud environments. The latest is a statement from Gartner analyst Andrew Walls, pointing out that enterprises simply assume self-managed computing environments are more secure than shared public services:

"When you go to the private cloud they start thinking, 'this is just my standard old data centre, I just have the standard operational issues, there's been no real change in what we do', and this is a big problem because what this tells us is the data centre managers are not looking at the actual impact on the security program that the virtualisation induces."

"They see public cloud as being a little bit more risky therefore they won't go with it. Now the reality is, from my own experience in talking to security organisations and data centre managers around the world is that in many of these cases, you're far safer in the public cloud than you are on your own equipment."

So, Walls seems to be saying that many (most) IT organizations don't understand how virtualization changes "security," much less cloud, and therefore those organizations would be better off putting their infrastructure in the hands of a public cloud provider. That, to me, is a generalization so broad it's likely useless. There are way too many variables in the equation to make a blanket statement for the applications at any one company, much less for an entire industry.

In fact, regardless of the technical and organizational realities, there is one element that is completely out of the control of both the customer and cloud provider that makes public cloud an increased risk: the law. Ignoring this means you are not completely evaluating the "security" of potential deployment environments.

Some laws affect data management and controlThere are two main forms of "risk" associated with the law and the cloud. The first is explicit legal language that dictates how or where data should be stored, and penalties if those conditions aren't met. The EU's data privacy laws are one such example. The U.K.'s Data Protection Act of 1998 is another. U.S. export control laws are an especially interesting example, in my opinion.

The "risk" here is that the cloud provider may not be able to guarantee that where your data resides, or how it is transported across the network, won't be in violation of one of these laws. In IaaS, the end user typically has most of the responsibility in this respect, but PaaS and SaaS options hide much more of the detail about how data is handled and where it resides. Ultimately, it's up to you to make sure your data usage remains within the bounds of the law' to the extent you don't control of key factors in public clouds, that adds risk.

The cloud lacks a case lawThe second kind of risk that the cloud faces with the law, however, is much more nefarious. There are many "grey areas" in existing case law, across the globe, with respect to how cloud systems should be treated, and what rights a cloud user has with respect to data and intellectual property.

I spoke of the unresolved issues around the U.S. Constitution's Fourth Amendment protections against illegal search and seizure, but there are other outstanding legal questions that threaten the cloud's ability to protect users at the same level that their own data center facilities would. One example that is just coming to a head is the case of EMI versus MP3tunes.com.

Three years ago, EMI sued the company and it's founder and CEO, Michael Robertson, for willful infringement of copyright over the Internet. EMI claims that MP3tunes.com and its sister site, Sideload.com (a digital media search engine), are intentionally designed to enable users to violate music copyrights.

Robertson defends the sites as simply providing a storage service to end users, and therefore protected under the "safe harbor" provisions of the Digital Millennium Copyright Act. These provisions protect online services from prosecution under the DMCA as long as they remove infringing content when notified of it's presence.

At stake here is whether any online storage service (aka "cloud storage provider") is protected by the DMCA's safe harbor provisions, or if the very ability of users to find, upload and store infringing content is grounds for legal action. Even if MP3tunes is indeed found to be promoting infringement, what are the legal tests for identifying other such services Will a new feature available at your favorite storage cloud suddenly put your provider--or worse, your data--at risk

Yet another has to do with ownership of the physical resources, and what protections you have against losing your systems should those systems be seized for any reason. Imagine that your cloud provider was found to have been involved in violating federal law, and the FBI decided to seize all of their servers and disks for the investigation.

In this hypothetical situation, could you get your data back What rights would you have According to the 2009 case of a Texas colocation provider, in which 200 systems were seized--the vast majority of which belonged to the provider's clients, not the provider under investigation--very few.

There is no single "better option" for cloudI don't want to overstate the risks here. We've worked with colocation, outsourcing and even cloud offerings for a number of years now, and there have been very few "disastrous" run-ins with the law. Providers are aware of the problem, and provide architectures or features to help stay within the law. In the long term, these issues will work themselves out and public cloud environments will grow in popularity even before they are resolved.

However, making a blanket statement that public clouds are by de facto "more secure" than private clouds is just hype that ignores key realities of our fragile, nascent cloud marketplace. Until the market matures, the question of "better security" must take into account all factors that lead to risk in any given deployment scenario. With that context in mind, public and private clouds each have their weaknesses and strengths--which may vary from company to company or even application to application.

That said, Walls made one key point that I agree with emphatically. Just because a private cloud is behind your firewall, doesn't mean you don't have additional work to do to ensure the security of a private cloud environment. Having a data center does not automatically make you "more secure" than a public cloud provider any more than a cloud vendor is automatically more secure than anything an enterprise could do themselves.