ISP's Standing Up for Their Customers -- or Not

by Paul Alan Levy

Last week I posted about the problem of an Internet Provider, Dynadot, that rolled over when the target of postings on the web site of one of its clients filed suit (in the now-notorious Wikileaks case).  Several readers have asked, including one public comment, so where do we go to find the right ISP?

Last year, Declan McCullagh published a survey of ISP answers to questions that he posed to them about the circumstances in which they would consider suspending domain names in the absence of a court order.  This is not precisely responsive to the question here given that Dynadot suspended only after a court order -- a court order to which it consented!  Moreover, policies are one thing but actual practices may be something else.  Still the survey may provide some useful information.

On a related issue, I noted in last week's post that Go Daddy and Domains by Proxy are a mixed bag with respect to protecting their customers' anonymity.  Over the course of defending against subpoenas over the years, I have noticed that Yahoo! and Google have consistently insisted on the opportunity to give notice to their customers and to allow customers some amount of time to seek to quash the subpoena, although neither ISP is generally willing to oppose subpoenas on the merits (they leave it to the customer to find counsel and move to quash if they desire to do so).  Cable providers may be a good choice for this purpose because they are under a statutory duty to provide notice before disclosing.  There are occasional ISP's that have felt so strongly about protecting their users that they have gone out and found counsel to protect their users -- that is how we came to represent Network 54 in opposing a subpoena to identify posters on one of its message boards, and to represent infomercialscams.com in opposing a subpoena from Video Professor.  But these cases may be sui generis.

Of course, "past performance is no guarantee of future results."  :-)

Comments

[Ed]

Is it legal for apartment management to restrict residents to one ISP even when there are less expensive ISP vendors available?

[Paul Alan Levy]

In response to this question, I inquired of our friends at the Center for Democracy and Technology, www.cdt.org, which follows these issues, and got this response:

In late 2007 the FCC prohibited apartment managers from entering into exclusive contracts with cable television providers, and just a few weeks ago the FCC similarly prohibited exclusive contracts for telecommunications services. So for cable and telephone services, that kind of restriction is not permissible.

From CDT's perspective, deals limiting residents to a single ISP would pose exactly the same kind of problems. But as a legal matter, those FCC rules don't apply to ISP service. It's not even clear the FCC would have jurisdiction to regulate contracts between apartment managers and ISPs. And I'm not aware of any other regulation that would prohibit apartment managers from restricting residents to one ISP.

You may contact CDT directly for more information.