حقوق فناوریهای نوین (Mar 2025)
Considerations of Cloud Computing Contracts at the Conclusion Stage
Abstract
Information technology is the avanguard technology of the modern age that has affected various aspects of life and improved the quality of human life. Cloud computing is the ability to provide information technology resources through the Internet, which offers a new approach compared to traditional approaches in looking at the physical infrastructure of data and applications. Based on the services that can be provided to customers, cloud computing includes three main service models: infrastructure as a service, platform as a service, and software as a service. As a result, cloud computing is a model for providing services in information technology, which allows storing and processing information in It provides internet platform or private networks. The contracts that are concluded between providers and users of cloud computing services are mainly standard or supplementary contracts. Legal relations in the field of cloud computing are regulated by contracts known as service level agreements and data related laws. Technically and legally, these contracts must be completely carefully prepared. To pay attention to both aspects are necessary and mandatory. The cloud computing contract, like other contracts, is subject to the general rules of contracts in terms of the conditions of conclusion; Like all contracts, both parties must have a serious and healthy will, their law should be recognized for the transaction, the purpose of the contract should be legitimate and its subject should be clear and certain. 1. Background and Purpose Information technology, one of the most advanced scientific and technical fields in the modern era, has influenced various aspects of human life and created new areas for information management and processing. Cloud computing, as one of the fundamental developments in this field, by providing the possibility of data storage and processing through the Internet, has created a fundamental transformation in the structure of information infrastructures. Due to the distributed and multi-layered nature of this technology, the conclusion of contracts related to the provision of cloud services has special features that distinguish it from traditional contracts. Since cloud computing contracts are usually drawn up as standard and adhesion contracts, numerous legal issues arise regarding the drafting of these contracts and the determination of the obligations and responsibilities of the parties. On the other hand, protecting user data, determining regulatory frameworks, how to enforce the obligations of cloud service providers, and freedom of will in standard contracts are among the important challenges in this field. The purpose of this research is to investigate the characteristics of cloud computing contracts, the legal requirements for concluding these contracts, the principles governing their drafting, and the impact of freedom of will in determining contractual terms. Also, this study seeks to examine the challenges related to the implementation of these contracts in different legal systems and provide a comparative analysis of international approaches in this area. 2. Research Method This research has been done using a descriptive-analytical and comparative method, and the data used has been collected through reviewing scientific sources, legal articles, related laws and regulations, reports of international organizations, and analysis of judicial procedures in the field of cloud computing. In the first part, the theoretical foundations of cloud computing and the characteristics of contracts in this field are examined. Then, the legal structure of cloud computing contracts, the challenges related to drafting these contracts, and the role of freedom of will in determining their content are analyzed. In the final section, a comparative comparison is made between different legal systems, and the extent to which these contracts comply with the existing legal frameworks is examined. 3. Findings The findings of this research show that cloud computing contracts, in terms of legal nature and conclusion conditions, have characteristics that distinguish them from other commercial contracts. These contracts are usually concluded as standard or adhesion contracts, which means that cloud service providers specify pre-set conditions for users, and users can only accept these conditions or refuse to conclude the contract. As a result, users' bargaining power in these contracts is very limited, and this issue can lead to the imposition of unfair conditions in favor of cloud service providers. In terms of the conditions for concluding a contract, cloud computing contracts follow the general principles of contract law; This means that for the validity of these contracts, the existence of a healthy will, the capacity of the parties, the legitimacy of the subject of the contract, and the determination of the obligations of the parties are mandatory. However, the specific characteristics of cloud computing services have caused some principles of contract law to be applied differently in this area. For example, in many cloud computing contracts, service providers reserve the right to unilaterally change the terms of the contract for themselves, which can disrupt the contractual balance to the detriment of users. On the other hand, studies show that data security and privacy are among the most important challenges of cloud computing contracts. In many cases, users are not sufficiently aware of the extent of access of cloud service providers to their personal data and how they are processed and stored. Also, in some cases, cloud contracts lack specific clauses about the right to transfer data and how to recover information after the termination of the contract, which can endanger the rights of users. Comparative analysis of the regulations of different countries shows that different approaches have been taken in dealing with cloud computing contracts. The European Union, through the General Data Protection Regulation (GDPR), has developed a specific framework for protecting users' data and regulating cloud contracts. In the United States, laws related to cloud computing are mostly regulated at the state level and a self-regulatory approach has been used. In contrast, China has adopted a stricter approach and exerts strict control over data stored in cloud services. In Iran, despite the increasing use of cloud computing services, there is still no specific legal framework for regulating cloud contracts, and this has caused many cloud contracts to be subject to general contract laws, which do not meet the specific needs of this area. 4. Conclusion The results of this research show that cloud computing contracts, due to the specific characteristics of cloud services and how these services are provided, follow a different pattern compared to traditional contracts. In these contracts, cloud service providers set pre-determined conditions, and users usually do not have the right to change or negotiate the terms of the contract. This situation has caused, in many cases, the contractual balance to be disrupted in favor of cloud service providers, and users are limited in the face of the imposed conditions of the contract. One of the most important challenges of these contracts is issues related to data security and user privacy. In many cases, users do not have complete awareness of their rights regarding data stored in the cloud, how this data is processed, and the extent of access of cloud service providers to their personal information. Also, in some cloud contracts, there are no specific clauses regarding the rights of users in case of termination of the contract and how to recover their data, which can lead to numerous legal problems. Comparative studies show that some legal systems, such as the European Union, have implemented strict regulations in the field of regulating cloud computing contracts and protecting user data, while in some other countries, laws in this area are still under development. In Iran, despite the growth of the use of cloud computing services, a comprehensive legal framework h as not yet been developed to regulate cloud contracts, and this can increase legal and security risks for users and organizations. In total, this research shows that to develop an appropriate legal framework in the field of cloud computing contracts, it is necessary to adopt a medium-term approach that, on the one hand, protects the rights of users and, on the other hand, provides the necessary space for the growth of cloud service providers. In addition, the development of specific regulations in the field of data security, determining the rights and obligations of users and cloud service providers, and creating transparent supervisory processes can help improve the status of cloud computing contracts.
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