When patriotism and free speech collide, what rights do service providers have?

ISPs need to ensure their terms of service agreements include escape clauses telling clients what constitutes acceptable use. Banning illegal content such as copyright infringement and child pornography are basic to most agreements, but additional specifications or a catch-all clause are a must for providers looking to protect themselves.

Free speech

In June, the company turned off the site after using a software translator to read its Arabic-language content. Within days, the site was back online with a new URL, a new host, and the same content, but the end result was the same — upon learning of the material on its servers, Liquid Web, a privately held firm, booted the site, too.

“We shut them down on a technicality,” says Chief Executive Officer Matthew Hill. “We were getting tons of public pressure to do so, but obviously we didn’t want to host them anyway. We don’t want to host terrorists, in any sense of the word.”

Both firms had activated the website based on credit card payments, clearing the way for the client to post the content. Due to the nature of the hosting industry, content usually does not become an issue until somebody complains.

“If the credit card checks out, there is very little you can do beyond verifying the payment and address information,” says Hill, whose 20-employee company hosts 5,000 websites for clients in 70 countries. “To review the content of every website would be ridiculous.”

At C I Host, the site was one of 150,000. It came to the company’s attention when an Internet user objected to the content by launching denial of service attacks to make the site unusable.

C I Host restored service, read an English translation of the Arabic messages, and made the decision to shut down the site. Liquid Web pulled the plug after an Associated Press reporter notified Hill of an FBI investigation into the site’s history.

Both firms turned over the site’s content to the FBI, which declined comment; however, the Associated Press cited an anonymous federal official as saying the site was used to spread low-priority information among militant Arab groups. The report also says the site had been previously hosted by a Malaysia-based service provider, who disabled it due to its content.

Finding the right road

The saga typifies service provider angst about website content, especially following the terrorist attacks of September 11. Patriotism and intolerance of anti-American sentiment have increasingly impacted free speech on the Internet since the attacks on U.S. soil, according to the Electronic Frontier Foundation (EFF; www.eff.org). The organization has documented an extensive list of incidents and legislation centering on the conflict between these sentiments and freedom of speech.

The disabling of anti-American websites conflicts with the early notion of the Internet as an electronic democracy that would enable everyone with a website to share their views. The fight for a censorship-free Internet has become increasingly more difficult for people like Lee Tien, the EFF’s First Amendment attorney.

“The architecture of speech on the Internet didn’t change after September 11, but we have had a strong wave of patriotic sentiment … a critical mass … a pressure to feel and act the same way. The basic point is it may be my Web page, but I don’t necessarily have a voice, because if my ISP decides it doesn’t want to host me anymore, I have no voice,” Tien says. “Many ISPs are being put on the spot and just follow the path of least resistance, but when something like a Web page is taken down because of what it says, that’s censorship. It’s discrimination against ideas — a private censorship.”

Tien considers the issue serious, but he says it will not require traversing the “far more dangerous road” of a government-enacted remedy, “because in the big picture, most ISPs are doing a lot more for free speech and getting peoples’ ideas out than they are hurting it.”

The industry, assisted by watchdog groups and other free-speech advocates, can work it out, Tien says.

Faulkner of C I Host disagrees that free speech requires individual ISPs to host all manner of websites.

“I’m not going to preach that al Qaeda has the right to freedom of speech. This is about terms of service,” says Faulkner. “I’m a huge proponent of freedom of speech; however, our terms of service lay out the things we don’t allow on our network. It’s not against the law to be racist, but I personally won’t host that kind of stuff. That includes bigotry, racism, violence, and people who promote killing. We tell you up front the kinds of things we don’t allow, and if your website is in that group, go somewhere else.”

Faulkner calls such action responsible business behavior, assisted in part by a new awareness among Internet users who regularly notify service providers of illegal or objectionable content.

“It’s nice to see people banding together,” says Faulkner. “It has created a bond around all the states and in other countries that support America. There have always been people who hate America. Two years ago, it wasn’t a big deal. Today it is.”

Since September 11, C I Host has dumped a total of six anti-American websites from its servers, reporting three to the FBI. It also regularly rejects and reports sites that enable child pornography, copyright infringement, and other illegalities. Liquid Web follows the same principle as most ISPs, making its terms of service vague enough to exert control on websites it prefers not to host, says Hill.

“You don’t want to host hate groups or anything that’s truly negative, or else it’s a bad rap for the company,” Hill says. “Beyond that, the people who run the company, myself included, prefer not to do business with such individuals. We don’t want to host anything anti-American. Besides objecting to it on a personal level, there’s also the PR to consider.”

C I Host and Liquid Web received e-mail threats from individuals who were angered the firms briefly hosted the pro-al Qaeda website. After they shut it down, more e-mails threatened retaliation for its demise. Hill says he did not take the threats of holy war against his company seriously.

It was another matter in Texas, where Faulkner says retaliation from both sides seemed all too possible, because C I Host’s headquarters are close to a Muslim community where the former imam was investigated on suspicion of channeling funds to al Qaeda.

According to Faulkner, though, Texas yokels were the larger concern.