The Daily Clarity

“I blogged about problems friends were having hosting Zimbabwean human rights sites on US webhosting company, Bluehost. In that post, I speculated that someone connected with the Mugabe government had alerted Bluehost to the Kubatana account as a way of harrassing an organization that’s often critical of the government. That speculation was probably inaccurate. The situation with Bluehost apparently involves customers beyond Zimbabwe. Arash Abadpour, an Iranian student living in Canada, offers a translation from a blogpost on 1 Fathi about Bluehost shutting down Iranian blogs:

Since last week, Blue Host, the hosting service which is used for this very blog [and Kamangir as well], and the number one recommendation for WordPress hosting by WordPress itself, has adopted a policy of suspending its Iranian users. In some cases the bloggers have been given a short notice in order to back up their data and leave. This is despite Bluehost’s good reputation in the blogosphere. The matter of fact is that many of these bloggers, including Arash Kamangir who blogs at kamangir.net, have no connection to the Iranian administration and have had to take use of a foreign hosting service in order to freely express their opinions.

The author is fairly sympathetic to Bluehost, noting that the company’s terms of service make clear that they will not host services operated by people in “Sanctioned Countries presently include, among others, Balkans, Belarus, Burma, Cote d’Ivoire (Ivory Coast), Cuba, Democratic Republic of the Congo, Iran, Iraq, former Liberian Regime of Charles Taylor, North Korea, Sudan, Syria, and Zimbabwe.” I’ve argued previously that Bluehost’s terms of service are poorly written, use an outdated list of sanctioned countries and don’t draw an adequate distinction between sanctioned and non-sanctioned individuals.  Indeed, Bluehost now understands that their Terms of Service and their current enforcement measures are ill-conceived – after hearing from the US Treasury Department, they agreed to reinstate Kubatana’s website… though Kubatana decided to move to a webhost that is more aggressive in protecting the speech rights of its customers. My hope is that they’ll rewrite their terms of service and tell their abuse staff to stop shutting down Iranian, Syrian and Zimbabwean blogs. The fear is that web hosting providers may decide it’s simply less trouble to prohibit host blogs in countries where some individuals are sanctioned. In the comment thread on Arash’s post, Esra’a of Mideast Youth notes that Go Daddy appears to be following similar guidelines and has refused to host sites for their community. “

The reference to Bluehost’s terms of services, sent us off  to reread them in detail. These conditions appear to have been updated recently, or at least since the last time we read them. We reviewed the conditions and then contacted an attorney we know to comment on some of the more obscure terms. Although as a practicising corporate attorney, she  wouldn’t be cited on record, she provided some valuable feedback.  She also referenced the scarcity of case law on such matters, meaning that many terms are untested and open to interpretation. For all of you that are hosted by Bluehost, its subsidiaries or other similar companies, we would highly recommend you do read the terms of service.

One such clause is your acceptance of the terms. Per the attorney we consulted, it is unlikely that any substantive provision of the terms could be changed without prior notice and  approval (she cited the ‘reasonable man’ test as a measure) but it is certainly the intent of Clause 4  that the terms can be amended in any way and to any extent at any time – “Any use of the Services by Subscriber, after changes, modifications, additions or deletions to these Terms are posted on the BlueHost.Com website, shall constitute Subscriber’s acceptance of all such changes, additions, modifications or deletions.”

For those creating original works, please also be aware that per Clause 5.02, your copyright claim may well be compromised under these terms, again a relatively substantive provision  - ”By submitting content and data to BlueHost.Com, Subscriber grants to BlueHost.Com, its successors and assigns, the worldwide, royalty-free, and nonexclusive license under Subscriber’s copyrights and other rights, if any, in all material and content displayed in Subscriber’s web site to use, distribute, display, reproduce, and create derivative works from such material in any and all media…”

There are numerous provisions on content posted on sites, that Bluehost may deem to be inappropriate and may remove – in essence,  meaning any content that they don’t like for any reason (no reasonable test provision referenced) can be summarily removed. However,  in terms of this large international site denials of service,  Clause 11:03 is telling. It says that Bluehost does not monitor and only will remove content or stop provision of service unless it ‘is made or becomes aware’ of a breach of service terms. This does call into question why Bluehost took down all these ‘infringing’ sites in one foul swoop as if somehow it suddenly became aware of all the infringements at once. Perhaps, it was coincidental, but the odds of simultaneously discovering breaches in a t least 3 countries across multiple domains does seem unlikely.

The specific provisions about sanctioned countries covered under OFAC provisions are contained in Clauses 13 and 14 and are standard language, except that the definitions of prohibited/sanctioned bodies has been extended from the state  to the widest possible interpretation of individuals or legal entities ‘resident or located’ in any of the sanctioned states (including some states that could now be considered friendly such as Iraq). This means, if one interprets the clauses literally, that if when visiting Iraq I posted a report on conditions there, Bluehost could claim a breach of service and deny service permanently and without any right of appeal . Naturally, this would be the an extreme interpretation, but one perfectly in accord with the legal definitions contained in the terms of service.

There is a campaign to communicate dissatisfaction with the actions of the web hosts, and spreading this article is but one component of that initiative. The Bluehost CEO has his own blog at www.mattheaton.com where you may be able to post comments on these policies.  However, it  apparently seems many of the comments on the matter are not making it out of moderation into the public domain . Mr. Heaton, in the spirit if not the actuality of Web 2.0 openness, does list his email address there as matt at bluehost dot com, but again we cannot guarantee your email will either be read or responded to. You may also contact Bluehost through their Web site at www.bluehost.com. These specific developments, and in reality, any restrictions for the capacity of political free speech by cyberactivits are disturbing. Systemic denials of service cast doubts about the intent and agendas of the companies involved – net neutrality was the dream of Web 2.0 and it cannot be given away lightly. Please use your ‘voice’ to spread the story of these developments and please feel free to contact your own host to determine their views of the issue and their future position on OFAC provisions.