Liability and computer backup

Computer backup is often neglected due to a lack of understanding and the illusion of the ubiquity of digital data. This unawareness exposes us to significant technical, economic, and personal vulnerabilities.

I’m not going to bother with that!

Computer backup seems like a topic that is, at first glance, a bit boring, technical, and reserved for IT professionals rather than the average person. It’s “their job,” whether it’s the platforms we pay for services or the IT departments of the organizations we work for. We rarely consider computer backup from the angle of our personal responsibility. Yet, when it comes to our library, the roof of our house, or maintaining our car, etc., we take a much more proactive approach, even though the consequences of neglecting physical objects today have far less impact than neglecting intangible ones. Generally, the loss of our digital data will have much greater consequences than the loss of our physical or paper belongings.

And yet, computer backup remains an abstract concept for us, or we only deal with it occasionally (we copy an important document to a USB drive, just in case). The reason for this lack of awareness—or even this inconsistency—on the part of most people, both in personal and professional contexts (not everyone, of course; some are very aware of the stakes of computer backup and take care of it), comes down, in my opinion, to two main reasons:

• On the one hand, a rather vague understanding of the concrete reality of this data. What is it? Where is it? How does it work? It’s very mysterious to us because, whether we’re young people born with computers or older individuals who encountered them later in life, it’s rare that we’ve had clear and understandable training to truly grasp it as plainly as, say, understanding the relationship between paper and water. We know very well that if water spills on a library, the paper will be damaged, and the books will become unusable. With digital, we’re completely in the dark. We don’t know how it works, so we have no concrete ideas about the right ways to take care of it. Perhaps it’s because it’s not directly visible. And indeed, that’s the key difference between digital and analog. Digital is code. Information—whether text, images, or sound—is transformed into code, meaning a sequence of numbers in the form of 0s and 1s, which can then be stored on different types of media. Hence the abstraction, because the same code, the same information, can be on a hard drive, a USB stick, “in the cloud” (i.e., in data centers accessible via the internet), on CD-ROMs, and can be transmitted via fiber optics, Wi-Fi, 4G... It’s exactly the same information, the same file, the same sound, the same image. So, since the storage and transmission of digital information aren’t tied to a single type of medium, it creates confusion in our perception. Hence, in my view, the importance of understanding what digital actually is on a material level, to reduce the confusion and thereby gain competence and a greater sense of responsibility.
• The other reason that keeps us from a good understanding is purely commercial and marketing-related. The industrial companies that sell us their digital services make our lives as easy as possible, ensuring that our documents, images, sounds, and phone messages are accessible from anywhere without us needing to understand how—as if there were a kind of ubiquity in data access. This gives them not only a somewhat magical role but, more importantly, an organic referent. The fact that we can instantly access our data via our mobile phones, no matter where we are, with manufacturers showing great skill in making it work even when offline (for example, managing our calendar: even when disconnected, we still have access thanks to cached data on our phones, which will automatically sync with remote data without our knowledge during the next connection). Thus, we truly feel a continuity between our organic presence and our data—as if they were part of us, and anthropologically speaking, they are, because we need them to operate our lives. We need access to our schedules, we need to communicate via text, audio, or video with loved ones or colleagues, we need to write documents that we can send to others—things that have always existed but now flow through digital technologies, whereas before they moved much more slowly through analog tools.

The digital has become organic

This form of consubstantiality between our biological organism and the organicity of digital data stems from our experience. But this experience is only possible if digital systems and services work perfectly. If there is any kind of failure, suddenly we lose the connection—not to external data, but to a consubstantial part of our biological life, our rhythm, our productive and even psychological needs.

In personal or romantic relationships, for example, exchanges via digital platforms are absolutely constitutive of life itself. Someone who responds late to a message, for instance, when an expectation of immediate reply had been established, is suddenly assigned an extremely precise intentionality. And a simple malfunction in digital technologies and services can deeply and lastingly disrupt even the most intimate human relationships.

This is why, in our daily lives, all of this remains quite abstract, and without realizing it, we delegate our responsibility through this almost biological sensation of data access. And in doing so, we place ourselves in a state of great dependence, in a position of economic, psychological, patrimonial, and political fragility.

A fire that should be instructive

The fire at a building belonging to web hosting provider OVH in March 2021 destroyed hard drives and instantly took 400,000 websites offline, with their data completely vanishing as it was stored on the burned hard drives. Depending on the websites, the consequences of this data loss varied in severity. A small editorial website whose articles had been pre-written in Word documents could be restored without major damage. However, for example, the website of Bati Courtage, a brokerage firm for construction work, which facilitated the organization of work for franchisees and their clients—including financial documents, contracts, etc.—suffered a major blow to its operations because the data, the core of its business, was irretrievably lost. It had not been duplicated elsewhere: invoices, communications, contracts…

Bati Courtage took OVH to court, seeking €6 million in compensation, which it believed fairly reflected the loss of business it had suffered due to the fire. At first glance, this seems legitimate. But let’s dig deeper, break down the issue, and see what the court ruled.

OVH’s customers can subscribe to different types of contracts, including those where data is duplicated across multiple sites, protecting against hardware failures like those caused by a fire. Best practices for remote sites—which aren’t necessarily OVH’s—state that sites should be at least 900 km apart to safeguard data against potential nuclear risks, which, at that distance, would presumably have no impact.

Many OVH customers had not subscribed to a contract that included data backup, meaning their data wasn’t duplicated. Yet, duplicating data is the only way to secure digital data in the present. For the future, other strategies apply, but for the present, duplication across two separate sites is key.

However, due to the reasons I mentioned earlier—magical, organic, and marketing-driven thinking about digital technology—people assume that their website, which they see working, will always work. There’s a kind of imagined eternity to digital technology, stemming from the immediate and ubiquitous connection it provides. Immediacy and ubiquity are traits we traditionally associate with God in our cultural representations. God is also eternal. So, if we have ubiquity and immediacy, we presuppose eternity.

These customers, who hadn’t bothered to opt for more expensive hosting that would have secured their data, were expected—and some did—to back up their website data themselves on their own hard drives. It’s not very complicated; it requires a simple procedure and regular effort. Reconstructing the data might take some work, but at least there’s a fallback solution.

For example, consider the website of a major French institution (whose name I’ll withhold out of discretion) that disappeared during this incident and hadn’t bothered to back up its data. Fortunately, their provider, who designed and operated the website, had voluntarily—without any contractual obligation—performed regular backups. Thanks to the provider’s sense of responsibility, the site was restored relatively quickly.

So, what happened to Bati Courtage? Given their awareness of how critical their data was, Bati Courtage had subscribed to a contract with a backup option. They were convinced their data was duplicated and therefore secure. That’s why they sought compensation. But upon closer examination of the contract, the court—specifically the Douai Court of Appeal—found that while the backup was stipulated as “physically isolated,” it was not explicitly stated that this isolation extended to geographically separate infrastructures.

Thus, from the initial €6 million compensation claim, the court of first instance ordered OVH to pay €100,000 in damages. However, on appeal, the court reduced OVH’s compensation liability to just €1,800.

Transcending Magical Thinking

It’s very hard for Bati Courtage, after suffering such harm. What these court decisions harshly remind us of is our individual responsibility, whether as natural persons or legal entities. The court is right: it is Bati Courtage’s responsibility that is truly at stake here. Delegating responsibility to an external, vague, and potentially magical structure is nothing but an illusion—this case makes that very clear.

I believe it is extremely important, for personal, economic, and asset-related reasons, to learn to become more aware of the world we live in, to transcend magical thinking and that kind of unconscious comfort which, in reality, leaves us dependent and vulnerable. We must empower ourselves to take responsibility in the digital world that is now ours.

This doesn’t mean becoming some sort of ascetics who no longer benefit from the extraordinary and convenient services offered by digital industries. It simply means doing our part and not delegating everything so recklessly.