[RTC List] Free speech could lead to online disconnect

[Sean McLaughlin]

http://www.latimes.com/business/la-fi-lazarus10oct10,0,5340663.column?coll=la-home-center
/From the Los Angeles Times/


  Free speech could lead to online disconnect

David Lazarus
Consumer Confidential

October 10, 2007

If you're displeased with the way a company treats you, you're free to 
air your feelings in public, right? Not necessarily if you receive 
high-speed Internet access from AT&T Inc. or Verizon Communications Inc.

Buried deep within both companies' voluminous service contracts is 
language that says your Net access can be terminated for any behavior 
that AT&T or Verizon believes might harm its "name or reputation," or 
even the reputation of its business partners.

The language came to light the other day after AT&T sent notices to 
thousands of customers rev ising their service contracts as part of the 
company's merger last year with BellSouth.

It follows an incident last month in which Verizon Wireless blocked an 
abortion-rights group from sending text messages over the company's 
network, deeming the messages too controversial. The company 
subsequently backtracked from the decision.

Before that, AT&T was caught in August censoring political comments made 
by Pearl Jam's Eddie Vedder during a concert webcast. The company later 
said it had made a mistake.

AT&T and Verizon say they've never enforced the can't-criticize-us 
contract terms, which have been in place for years.

But the provisions highlight yet again the danger to free expression 
when a relative handful of private companies serve as gatekeepers to 
information networks. Whether it's a rock star ranting against President 
Bush or a disgruntled customer griping about shoddy service, how free is 
free speech in the digital era?

"Not being able to speak your mind about something is contrary to public 
policy," said Frank Tuerkheimer, a law professor at the University of 
Wisconsin who focuses on Internet-related issues.

But it's apparently not illegal. The 1st Amendment, Tuerkheimer pointed 
out, doesn't apply to private entities.

You have to wade deep into AT&T's 14,000-word service contract to find 
the one-line disclaimer in which the company reserves the right to slam 
the door on any Internet customer who might bruise the company's feelings.

Along with specifying behavior that is "defamatory, fraudulent, obscene 
or deceptive," the contract says service may be suspended or terminated 
for any behavior that "tends to damage the name or reputation of AT&T, 
Yahoo [AT&T's online partner] or their respective parents, affiliates 
and subsidiaries."

In Verizon's case, you have to make it all the way through the company's 
10,000-word contract to an attached document laying out the "acceptable 
use policy."

This is where customers are informed that, among other things, they 
aren't allowed to post material online that's "obscene, indecent, 
pornographic, sadistic, cruel or racist in content, or of a sexually 
explicit or graphic nature; or which espouses, promotes or incites 
bigotry, hatred or racism."

It's also where the company says customers are similarly crossing the 
line if they "damage the name or reputation of Verizon, its parent, 
affiliates and subsidiaries, or any third parties."

Jon Davies, a Verizon spokesman, said the language was there "to stop 
people from setting up websites that look like Verizon's" or engaging in 
other ploys frequently used by scammers to con people into revealing 
personal info, including Social Security and credit card numbers.

Verizon's contract, however, explicitly states elsewher e that such 
behavior can result in termination of service. So it would appear that 
the "name or reputation" clause is asserting a broader prerogative on 
Verizon's part.

Davies said he understood that some people might view the language as 
Verizon claiming a right to censor customers' opinions, particularly 
when such opinions might trample on Verizon's good name.

"But whether or not it's interpreted that way is irrelevant," he said, 
"because we've never used it that way. Actions speak louder than words."

That wasn't a very persuasive argument for Kurt Opsahl, senior attorney 
at the Electronic Frontier Foundation, a San Francisco advocacy group 
focusing on digital-rights issues. "If they're not going to use it, then 
why have it?"

John Britton, an AT&T spokesman, stressed that the company had no plans 
to censor customers. "We respect our customers' right to express 
themselves as they see fit,&q uot; he said.

So why have the language in customers' contracts?

"The policy is what it is," Britton replied. "This is common brand 
language designed to protect the brand."

Actually, not all broadband providers claim such a right. For example, a 
spokeswoman for Time Warner Cable said the company had no policy 
addressing termination of customers' accounts just because they might 
say mean things.

Late Tuesday, Britton called back to say AT&T's contract language would 
be revised in the future to reflect a more free-speech-friendly mind-set.

"We are going to clarify the policy to make clear that nobody is faced 
with losing service because they express an opinion about the company," 
he said.

To be safe, though, AT&T's and Verizon's contracts also contain language 
specifying that customers can't hold them accountable for service 
disruptions resulting from circumstances beyond their contro l.

In Verizon's case, the company says this includes "acts of God, acts of 
third parties, fires, floods, strikes or other labor-related disputes."

AT&T has a much gloomier outlook. It says customers are on their own in 
the event of "acts of God, fire, explosion, vandalism, nuclear disaster, 
sun spots, solar flares, terrorism . . . insurrections, riots, wars."

"We're just trying to be as clear as possible," Britton said.

So don't go crying to AT&T when your Internet access goes out amid an 
insurrection or nuclear disaster. But try not to say anything unkind either.

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