Scholarship@WashULaw

Document Type

Article

Publication Date

2022

Publication Title

Washington Law Review

Abstract

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care and may be liable if they fail to return the property. The parties can use contracts to customize the relationship but not to disclaim the duty of care entirely.

Tracing the law of bailment relationships from its ancient roots to the present, this Article argues that cloud storage should be understood as potentially creating a bailment relationship. Though the kind of stored property has changed over time, the parties’ expectations and incentives have not: people entrusting their property to others expect that it will be kept reasonably safe. Although cloud storage is not new, courts have had scant opportunity to analyze the obligations of cloud storage providers. The best explanation for this lack of case law is the decline of litigation, the rise of arbitration, federal diversity jurisdiction, and the ever-growing dominance of contracts, not that bailment has no role in cloud storage.

Recognizing cloud storage as a potential bailment would have significant implications. Most immediately, it would suggest that some provisions in many cloud storage services’ contracts are unenforceable or enforceable only after fact-intensive judicial review. A hand-collected dataset of fifty-eight cloud storage contracts reveals that most have included general disclaimers for any liability for lost data that are inconsistent with the duty of care that is the foundation of the law of bailment. In addition, understanding cloud storage as a bailment would have important implications for both the law of consumer protection and Fourth Amendment protections.

Keywords

Property, Bailment, Contracts, Exculpatory Clauses, Internet, Cloud Storage, Data, Privacy, Fourth Amendment

Publication Citation

Danielle D'Onfro, The New Bailments, 97 Washington Law Review 97 (2022)

Comments

Cover Page Footnote:

I am grateful for feedback from Molly Brady, Ryan Calo, Nestor Davidson, Dan Epps, Ron Levin, Ronald Mann, Christopher Newman, Chris Odinet, Neil Richards, the participants in the 2021 Private Law and Emerging Technologies Workshop, the 2021 AALS Property New Voices Program, the 2021 AALS Consumer/Commercial Works in Progress Program, the 2020 Washington University School of Law Winter Sprint Workshop, and the Junior Faculty Spring Writing Retreat. Many thanks to Hyla Bondareff, Phil Eckert, Calann Edwards, Nathan Hall, Kathie Molyneaux, and Melissa Sapp for their research assistance. I am especially grateful to the editors of Washington Law Review for their diligent work on this Article. I am especially indebted to Lindsey Diel and SweetArt St. Louis for their support while writing.

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