[11702] in Commercialization & Privatization of the Internet
In the matter of advertisements and lawsuits
daemon@ATHENA.MIT.EDU (Paul Robinson)
Thu Apr 14 17:45:24 1994
Date: Thu, 14 Apr 1994 02:06:21 -0400 (EDT)
From: Paul Robinson <PAUL@tdr.com>
Reply-To: Paul Robinson <PAUL@tdr.com>
To: Everyone Else Lurking on Com-Priv <com-priv@psi.com>,
Risks in computing <RISKS@csl.sri.com>,
Ethics in Computing <ETHICS-L@vm.gmd.de>
>From: Paul Robinson <PAUL@TDR.COM>
Organization: Tansin A. Darcos & Company, Silver Spring, MD USA
-----
Recently - I think it was on the Com Priv list - someone complained that
some organization had posted a message dealing with the issue
of Green Cards and Immigration to several lists, which in essence could
have been considered an advertisement.
The provider of their E-Mail connection then immediately terminated their
account and it was announced that the company would be suing the provider.
Someone else on here noted that it was "only in America can someone act
like an asshole and then sue someone."
Let's examine this logically, shall we.
1. The holder of the account sent a message to several mailing lists.
Was sending a message violating any law or conceivable as violating
standards sufficient to require immediate termination of service?
No. Sending a message is standard practice on Internet, and is part
and parcel of the service.
2. Was sending an off-topic message violating any law or conceivable as
violating standards sufficient to require immediate termination of
service? No. People sometimes make mistakes, and it happens from
time to time.
3. Did this message violate or could it be considered as violating an
"Acceptable Use Policy" or other standard. That's a gray area, but
as the message itself was not a flat advertisement, I think it could
withstand challenge as a pure advertisement. Someone on one of the
lists said that it would have been perfectly acceptable on any list
dealing with immigration. In short, the message probably would have
been legal to be sent even under the NSF's AUP - assuming such a
standard, being a government standard of content of transmitted
material - is constitutionally permissible, another gray area that
might not even be valid.
So, as a matter of law, what has happened is that a service provider has
made an immediate termination of someone's service merely on the basis of
complaints about the content of a message that neither the message nor
the content was illegal, nor that it violated any law and probably didn't
violate the contract with the provider.
Let's look at it from another standpoint. Someone sends out the same
message over a modem from his office in, say, Las Vegas. Centel of Nevada
immediately disconnects his phone service, and his landlord gets a truck
and removes his files and places them on the street. Does he not have
cause of action to sue them? You might say yes, since while his message
might be considered inappropriate, there was no legal grounds for the
phone company to disconnect his service nor for his landlord to perform an
immediate eviction.
Now, let's say I am in a restaurant and sitting at a table, eating a
sandwich I paid for, and am eating it in a rather offensive manner to
someone out on the street. That person comes in and complains to the
owner of the restaurant, who then grabs the food I paid for out of my
hand and tells me to leave. Do I not have grounds to sue the owner of
the restaurant for refusing to let me eat the food I paid for?
In the instant case, the owner of an account posted something which some
people considered inappropriate. The provider of service, instead of
making some kind of arrangement such as informing them that such behavior
is considered inappropriate, immediately terminated their service, e.g.
locking their account. Now, common business practices dictate that
immediate termination of service is only justified if either there is a
contractual right to do so, or if there is a threat to the continued
operation of the provider such that continued operation of the particular
service requires termination of that customer's service.
If there was _no contract at all_ then, in the absence of a law dictating
terms of service, it is probably within reason to immediately terminate
someone's service subject to any unfinished business and there would be
no grounds to sue.
However, most Internet providers have contracts. I can't think of any
that don't. In order to get service with them, I have one, for example,
with Doug Humphrey's Digital Express.
I also have a domain exchange service I pay for from Robert Raisch's
Internet Company, which supplies me with mail forwarding for the TDR.COM
domain. An example of the difference is that since I have a contract
with Digital Express, they must give me 30 days before terminating my
service in the absence of my committing an act that violates my account.
Internet Company, on the other hand, could, if it wanted to, simply
terminate my service and refund my money without explanation, since I
only have a purchase of service from them and not a contract.
If someone has a contract, in the absence of a provision permitting
immediate termination for non-threatening issues, denial of service -
immediate termination without warning - almost certainly violates the
contract the customer paid for. Now, if the customer's service is
reinstated, then it could be deemed that the account was 'temporarily
suspended in order to analyze the situation' but I suspect the provider is
on very shaky ground here. The longer this account is frozen or locked
out, the larger the chances that the customer can claim a contract
violation and obtain damages.
Now realize that there was no violation of law here; the message did not
involve a Dave Rhodes 'Make.Money.Fast' scheme and thus the provider could
immediately terminate service on the grounds that the service is being
used to violate federal laws.
This is an instance where the service provider is unilaterally denying
service to a customer because of complaints about the content of messages
sent out by the customer, where the customer's conduct is merely offensive
to some people who are not even customers of the provider, and where the
activity isn't even violating the law.
I'd like to invite some of the Internet service providers who read this
list such as Barry Shein, Rick Adams, Doug Humphrey, Ed Vielnetti of
MSEN, or the guy in Chicago who just became a CIX member, whose name I have
unfortunately forgotten, to comment on my analysis of the incident and
what their opinions are.
I think that, in the absence of criminal behavior or conduct which
threatens continued operations, that disconnection of service merely
because some other people don't like the opinions of the poster of a
message or feel his message is inappropriate, is a chilling risk to
free speech. It is, moreso, worse because the 1st Amendment doesn't
apply to the actions of private companies. Since there is no 1st
Amendment issue to raise, the only issue that can be raised is contract
requirements.
Comments, anyone?
---
Paul Robinson - Paul@TDR.COM
Voted "Largest Polluter of the (IETF) list" by Randy Bush <randy@psg.com>
-----
The following Automatic Fortune Cookie was selected only for this message:
In the District of Columbia, the cost of living is going up, and the
chance of living is going down.
