New AT&T ToS attempts to circumvent free speech

A few years ago I wrote a paper on contract rights constricting federally granted consumer rights (iTunes ToS forbids resale of legally purchased music). Essentially

ToS > “first sales doctrine”

A new AT&T ToS has gone a step further. In it’s new ToS the telecommunications giant has stated that those who harm their reputation will have their services suspended.

AT&T may immediately terminate or suspend all or a portion of your Service, any Member ID, electronic mail address, IP address, Universal Resource Locator or domain name used by you, without notice, for conduct that AT&T believes (a) violates the Acceptable Use Policy; (b) constitutes a violation of any law, regulation or tariff (including, without limitation, copyright and intellectual property laws) or a violation of these TOS, or any applicable policies or guidelines, or (c) tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries.

emphasis mine

Is it possible that:

ToS > free speech?

Free speech can be traded away by contract and the process is very common. I have signed numerous Non Disclosure Agreements stating that I would not reveal certain information to anyone else. However the commitment to silence was normally in exchange for a large paycheck and established through a separate legal document. Here the value exchange seems to be “you get to continue using the Internet and pay us for the privilege”. It is also really odd to see this placed within the bowels of a ToS. I have a feeling that this clause is never mentioned to prospective customers when they sign on and it is unthinkable that it could be forced onto existing customers.

In the early days of the Internet this would not be a big deal. There were so many ISPs that leaving one was a minor inconvenience of reconfiguring ones TCP/IP settings or dial up number. But as the consolidation of ISPs has come to a climax we consumers find ourselves with very few choices. In some cases a consumer subscribed to AT&T may have *no* other choices. This presents an interesting tension where a consumer who wants to voice dissatisfaction of service with AT&T may censor themselves in order to stay on the Internet. While it is still difficult to argue that the Internet is required in day to day life (such as other utilities like water, electricity, etc) it would not be a stretch to say that it is vital enough that bandwidth providers should be prevented from making these types of self serving clauses. One has to admit this seems like the behavior of a monopolistic actor in the marketplace.

It would seem that only companies with that much sway could proscribe “bad press” in a ToS. Others have remarked that the language itself is also extremely vague and would require no proof on the part of AT&T. Even a backhanded comment about speed on a blog could be construed as a violation of the ToS. Even worse all the parent companies and subsidiaries are covered. Would this mean that a blog about the dissatisfaction of a consumers cell phone plan (under AT&T Wireless) could result in the suspension of Internet services? It would certainly be within their contractual rights.

Even this blog entry is suspect under the rules of the ToS and I am very happy to say that I am not signed up with AT&T right now. It will be interesting to see how AT&T defends or spins this story now that the national attention of legal and tech geeks has been turned to this document. Let us hope that the person who reported it doesn’t lose their Internet service for letting everyone else know.

EDIT: I have made a pdf of the ToS in the event that sheer embarrassment causes AT&T to silently modify the online document.

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