A recent skirmish between domain registration company GoDaddy and the owner of a mailing list archive site has illuminated the need for webmasters to be sure they closely read and understand their hosting company's terms of service.
Fyodor Vaskovich, who operates SecLists.org, said he was taken by surprise when he was contacted by a GoDaddy representative, who informed him that his domain was being suspended due to a violation to GoDaddy's TOS. Upon further discussion, Vaskovich learned that social network MySpace had requested the seclist site be taken down because, the GoDaddy rep told him, it archived a list of 34,000 MySpace user names and passwords that previously had appeared on the popular mailing list Full Disclosure.
Although Vaskovich's site was not adult oriented, his dilemma does bring to light the often arbitrary terms of service to which domain registration companies require their customers adhere. In addition to "activities prohibited by the laws of the United States and/or foreign territories in which You conduct business," GoDaddy's TOS prohibit "activities that are…vulgar, obscene…or otherwise objectionable."
Such broad terms may raise a red flag for adult webmasters, whose sites could be considered any of those things by someone offended by adult content. This begs the question: If GoDaddy could suspend a customer's domain because a third party complained about non-adult content, what prevents GoDaddy—or any other domain seller with similar terms of service—from nixing an adult site should somebody complain about its content?
"GoDaddy's contractual verbiage that includes the right to suspend due to 'vulgar, obscene…or otherwise objectionable' material coupled with their apparent willingness to suspend domains at the drop of a hat is disconcerting—to say the least," commented Free Speech Coalition Executive Director Diane Duke. "I suspect that these restrictions are not uncommon in many legal agreements for businesses we all use. It is a matter of enforcement and who listens to the moral police who are out there actively looking for ways to shut us down."
GoDaddy, however, claims adult webmasters need not worry. "GoDaddy does not use its 'morally objectionable' clause to take action against legal, adult-oriented websites," said the company's director of network abuse, Ben Butler, in a statement issued to AVNOnline.com. "We do use it to exercise our discretion to terminate our services when they are used by individuals engaged in illegal activity, such as child pornography or inciting others to violence. We investigate every complaint we receive. Every situation is unique, and our abuse department carefully examines each individual situation for appropriate handling.
"As a general rule, we do not allow illegal content on our network, nor do we allow our customers to use our products or services in association with illegal activities," Butler continued. "The section in our terms of service [that references 'vulgar, obscene…or otherwise objectionable' activities] is there to give us the ability to act when actions are clearly needed, and reliance on existing laws or law enforcement is not a viable option. A good example of a 'morally objectionable' site that would probably not be allowed would be something like a 'child modeling' site that is really only a barely legal means of exploiting minors—or perhaps hate sites."
GoDaddy customers who own adult domains may feel comforted by the company's explanation, but the vague language in the company's terms of service still stands, leading one to wonder what legal recourse a webmaster would have if his or her site were suspended by any domain registrar.
"Courts generally try to interpret contracts so that they're not entirely one-sided," First Amendment lawyer Reed Lee told AVNOnline.com. "Usually, what they do in situations like that is hold a party like GoDaddy to a 'reasonableness determination' on the words: They'll use the words in the contract to define an area of concern, then they'll assess whether the situation reasonably fits into one of those categories. They wouldn't let somebody in GoDaddy's position get away with just any interpretation; they'd require a reasonable interpretation.
"The other thing is, when there's a list of terms and then a general term at the end—like 'otherwise objectionable'—courts will say [the general term] has to fall in the same general range as the specific terms," Lee added. "If there's a list of terms and then a general term at the end, the general term is interpreted in light of the list of specific terms."
What does this mean for adult webmasters? For those whose domains are hosted by GoDaddy, it could be a good thing, as the preceding terms in the TOS have to do with harassing, defaming, and/or embarrassing third parties, as well as with U.S. laws intended to prevent hate crimes and slander. Still, for others, it may be worth reviewing the terms of service of one's domain registrar—just in case.
"The bottom line is that [Go Daddy or another domain seller] is not a governmental entity," Lee cautioned. "Their contracts are those that people pretty much have to buy into. [Registrants] can't bicker about terms. Lawyers call those 'contracts of adhesion,' whereas one party just has to stick to it or not—and the other party isn't going to budge [regarding] terms. Under those circumstances, courts are a little more strict in their interpretation. That is, the interpretation will favor the party that is not really in a position to negotiate terms. But, that's kind of a limited way that courts can provide some relief. There are some harsh realities when one company has all the bargaining power, one of them being that terms of service are usually presented on a take-it-or-leave-it basis."
For Lee, this calls into question the Internet's place in the grand scheme of things.
"There's an overall question lurking beyond all of this, which is: How governmental ultimately are restrictions on the Internet?" Lee posited. "Is the Internet really just something brought to us by private enterprise, or do the ultimate links with, say, the U.S. Department of Commerce give somebody some First Amendment claims when someone needs them? With a contract for a domain name, there's also a question about whether those clauses are required or permitted by the contract that the registree has with ICANN, and if so, the real lingering question is whether ICANN is a government act for the purpose of things like the First Amendment because of its contract with the U.S. Department of Commerce. Those are questions that are easy to ask; clear answers aren't even on the legal horizon at this point."
Until then, adult webmasters should be cautious about entering into agreements with any companies with terms of service that may seem vague or open to broad interpretation.
"Certainly, each situation is going to be judged on a case-by-case basis, but the reality of these adhesion contracts is that the more powerful party is unlikely to negotiate changes in terms," Lee warned. "People can keep in mind that they'll get some consideration from the courts in interpreting those terms—given that it was an adhesion contract—but that's not going to go a long way."
