Your Internet provider is watching 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
Washington-based consumer advocacy group. "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 Inc. took advantage of its stated right to block any activity
that causes the company "to be viewed unfavorably by others."
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," Zittrain
said.

AT&T
removed the "unfavorably by others" wording in February after The
Associated Press asked about the reason behind it. Subscribers,
however, wouldn't know that it was gone unless they checked the
contract word for word: The document still said it was last updated
Oct. 8, 2007.
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 wiggle room or 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. Comcast Corp. is being investigated by the Federal
Communications Commission 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.
Williams
himself knows that it's tough to pay attention to the contracts. He
recently had Verizon Communications Inc.'s FiOS broadband and TV
service installed in his home. Only after the installation was
completed did he get the contract in the mail.
He could have read some of the terms earlier, when placing the order online, but he just clicked the "Accept" button.
"I'm
a hard-nosed consumer advocate type ... I really should have examined
it better than I did," he said. But, he added, he acted like most
consumers, because of the lack of alternatives. "You click the 'Accept'
button because it's not like you're going somewhere else."
Other common clauses of ISP contracts:


ISPs can read your e-mail
Practically
all ISPs reserve the right to read your e-mails and look at the sites
you visit, without a wiretap order. This reflects the open nature of
the Internet _ for privacy purposes, e-mails are more like postcards
than letters. It's also prompted by the ISPs' need to identify and stop
subscribers who use their connections to send spam e-mails.
Some
ISPs, like AT&T Inc., make clear that they do not read their
subscriber's traffic as a matter of course, but also that they need
little or no excuse to begin doing so. Cablevision, a cable operator in
the Northeast, says one of the reasons it might look at what a customer
is doing online would be to help operate its service properly.
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.
Wiretapping
laws may also apply, but the situation is unclear. A federal appeals
court panel in 2004 dismissed charges against a company that provided
e-mail services for booksellers and snooped on their Amazon.com order
confirmations. The charges of illegal wiretapping were reinstated by
the full appeals court the next year, but the case hasn't been tried.

ISPs can block you from Web sites
Or
at least they would like to think so. In a clause typical of ISPs,
Comcast reserves the right to block or remove traffic it deems
"inappropriate, regardless of whether this material or its
dissemination is unlawful."

The ISP sees itself as the sole judge of whether something is appropriate.
Broad
enforcement of this kind of clause for business purposes other than
protecting users is likely to draw attention from regulators like the
FCC, as is happening in the Comcast file-sharing case.

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.
It's
difficult to reach these secret bandwidth caps unless users are
downloading large amounts of high-quality video from the Internet, but
the advent of high-definition Internet video set-top boxes like the
Apple TV and the Vudu could make it more common.
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. Cox, however, does make the monthly download and upload
limits public on its Web site.

Time
Warner Cable Inc. has said it will test putting public caps on how much
new subscribers in Beaumont, Texas, can download per month, and charge
them more if they go over.
Digital
subscriber line providers like AT&T and Verizon aren't as concerned
about bandwidth hogs, because phone lines aren't shared among
households.