ISP contract terms might scare you

What's scary, funny and boring at the same time? It could be a bad horror movie. Or it could be the fine print on your Internet service provider's contract.

Those documents you agree to — usually without reading — ostensibly allow your ISP to watch how you use the Internet, read your e-mail or keep you from visiting sites it deems inappropriate. Some reserve the right to block traffic and, for any reason, cut off a service that many users now find essential.

The Associated Press reviewed the "Acceptable Use Policies" and "Terms of Service" of the nation's 10 largest ISPs — in all, 117 pages of contracts that leave few rights for subscribers.

"The network is asserting almost complete control of the users' ability to use their network as a gateway to the Internet," said Marvin Ammori, general counsel of Free Press, a consumer-advocacy group based in Washington, D.C. "They become gatekeepers rather than gateways."

But the provisions are rarely enforced, except against obvious miscreants like spammers. Consumer outrage would have been the likely result if AT&T took advantage of its right to block any activity that causes the company "to be viewed unfavorably by others."

"Piece of boilerplate"

Jonathan Zittrain, professor of Internet governance and regulation at Oxford University, said this clause was a "piece of boilerplate that is passed around the corporate lawyers like a Christmas fruitcake.

"The idea that they would ever invoke it and point to it is nuts, especially since their terms of service already say they can cut you off for any reason and give you a refund for the balance of the month."

AT&T removed the "unfavorably by others" wording in February after The Associated Press asked about the reason behind it.

Most companies reserve the right to change the contracts at any time, without any notice except an update on the Web site. Verizon used to say it would notify subscribers of changes by e-mail, but the current contract just leaves that as an option for the company.

This sort of contract, where the subscriber is considered to agree by signing up for service rather than by active negotiation, is given extra scrutiny by courts, Zittrain said. Any ambiguity is usually resolved in favor of the consumer rather than the company.

Yet the main purpose of ISP contracts isn't to circumscribe the service for all subscribers, but rather to provide legal cover for the company if it cuts off a user who's abusing the system.

"Without the safeguards offered in these policies, customers could suffer from degradation of service and be exposed to a broad variety of malware threats," said David Deliman, spokesman at Cox Communications.

The language does matter: In a case involving a student accused of hacking, a federal appeals court held last year that subscribers should have a lower expectation of privacy if their service provider has a stated policy of monitoring traffic.

But these broadly written contracts still don't provide all the legal cover ISPs want. The Federal Communications Commission is investigating Comcast for interfering with file sharing by its subscribers. The company has pointed to its Acceptable Use Policy, which said, in general terms, that the company had the right to manage traffic.

Since the investigation began, it has updated the policy to describe its practices in greater detail, and recently said it would stop targeting file-sharing once it puts a new traffic-management system in place late this year.

The Comcast case is a rare example of the government getting into the nitty-gritty of one of these contracts.

"There really should be an onus on the regulators to see this kind of thing is done correctly," said Bob Williams, who deals with telecom and media issues at Consumers Union.

If there were more competition, market forces might straighten out the contracts, he said. But most Americans have only two choices for broadband: the cable company or the phone company.

Common clauses

Other common clauses of ISP contracts:

• ISPs can read your e-mail. This reflects the open nature of the Internet — for privacy purposes, e-mails are more like postcards than letters.

The federal Electronic Communications Privacy Act protects e-mail and other Internet communications from eavesdropping, but several of its provisions can be waived by agreements between the ISP and the subscriber. Also, the law is mainly aimed at making it difficult for the government, not companies, to snoop.

• ISPs can block you from Web sites. Or at least they would like to think so.

The ISP sees itself as the sole judge of whether something is appropriate.

• ISPs can shut you down for using the connection too much. For cable ISPs, up to 500 households may be sharing the capacity on a single line, and a few traffic hogs can slow the whole neighborhood down.

But rather than saying publicly how much traffic is too much, some cable companies keep their caps secret and simply warn offenders individually. If that doesn't work, they're kicked off.

Oddly, some ISPs, like Cox, say it's the responsibility of subscribers to ensure that they don't hog the traffic of other subscribers, a determination that's impossible for a home broadband user.

Digital subscriber line providers like AT&T and Verizon aren't as concerned about bandwidth hogs because phone lines aren't shared among households.