by Luca Bertuzzi
The obligation for cloud providers to maintain an equivalent level of functionality when a customer changes service has resurfaced in the European Parliament’s leading committee discussion.
The discussions are taking place in the context of the Data Act, the EU’s new data law which includes provisions to facilitate customers switching cloud providers and preventing the so-called ‘locked in’ effect.
One of the fundamental concepts the Data Act uses to ensure such cloud interoperability is functional equivalence, the idea that when users change providers, the level of functionality of their app or website should remain roughly the same.
However, in October, Adam Bielan made a case to remove this concept from the text. Bielan is the opinion rapporteur for the European Parliament’s internal market committee (IMCO), which has exclusive competencies on this part of the file.
For the Polish lawmaker, functional equivalence is an unreasonable requirement since the cloud provider of origin would be forced to take responsibility for the performance of a competitor’s service.
However, his position faced virtual unanimous opposition from other political groups. Functional equivalence was, therefore, reintroduced in new compromise amendments obtained by EURACTIV and circulated on Wednesday (11 January).
The text will be discussed at a political meeting on Thursday, with the view of stabilising it by mid-next week.
Refined concept
The concept was redefined as “the possibility to re-establish on the basis of the customer’s data a minimum level of functionality in the environment of a new data processing service after the switching process”.
The switching process is defined as a ‘customer-driven’ operation. Responsibilities were clarified, and the process is broken down into three steps: data extraction from the original provider, the transformation of the data into a structure understandable to the new location and upload to the new environment.
As cloud services are extremely diverse, the text specifies it will be sufficient to provide ‘equivalent services’, namely that the same primary objective, main functionalities and data processing model. That does not exclude competing on other characteristics such as performance or security.
Moreover, the text notes that functional equivalence can only be achieved insofar as the two cloud providers offer the same core functionalities. The porting process and timeframes must consider the complexity and service type.
Portability obligation
The Data Act provides that cloud services should remove any obstacle to exporting data and other digital assets. The notice period to terminate a contract was maintained at 60 days without prejudice to contractual termination rights and notice periods.
A mandatory maximum transition period has been set to 90 calendar days. If the cloud providers consider that is not technically feasible, they would have to inform the customer within 14 working days of the switching request.
The customer could consequently request the provider a report motivating the technical unfeasibility and indicate an alternative transition period that should not exceed nine months from the end of the notice period.
Users could export all the data they contributed to generating directly or indirectly, including metadata. However, the exportable data would not include confidential information, such as how the cloud provider maintains security.
In addition, the text now mandates cloud providers to include in the contracts and make available before signing information on exportable data, notably data formats, data structures and metadata.
A new definition of metadata is also introduced as data generated by the data processing service, like timing and geolocation.
New wording indicates that such portability obligation also applies to large-scale free-tier offerings. However, the functional equivalence would not be imposed on free services that operate on a trial basis or only supply testing for a product offering.
When porting the data, the compromise clarifies that the cloud providers should not be required to develop new technologies or services, disclose proprietary information or compromise the security or integrity of the customer or new provider’s service.
Switching charges
The new text reflects the push from several lawmakers to include stronger abolition of egress fees, the fees cloud providers charge for transferring customers’ data, and stricter transparency requirements in relation to such charges.
The compromise mandates that the switching charge should be dropped for consumers as soon as the Data Act enters into force.
For business users, withdrawing all switching charges would occur after three years. Until then, the cloud providers might impose reduced charges, although a comment at the document’s margin states that this point will be further discussed.
The wording clarified that both the original provider and the customer could delegate part of the switching process to a third party to reduce costs.
Good faith
A new article has been added mandating all parties involved, including the destination providers, to collaborate in good faith on the switching process, ensure the timely transfer of the necessary data and maintain a continuity of service.
The cloud provider of destination is expected to provide adequate information, documentation, technical support and tools throughout the switching process.
*first published in: Euractiv.com
By: N. Peter Kramer
