You have the right to speak freely (in an increasingly limited number of spaces)

Whose Terms of Service control your access to the increasingly private “public spaces” where you express yourself?

Chris Hall of Literate Perversions recently made a very cogent comment on my post, “My Way or the Highway’s Way.” He was pointing out how much of the limiting of “acceptable use” of public spaces involves a shift from citizen to consumer as the model for the individual. When we think of ourselves as citizens, we are thinking of ourselves as members of a community and as having collective rights, responsibilities and needs that we must act together in order to protect. When we think of ourselves as consumers — or when governments and corporations frame us as consumers — suddenly our rights, responsibilities and needs are framed in individual terms. “I” need something, “I” don’t want to pay for something, “I” am offended and don’t think certain messages should be transmitted. I come first (or my family comes first) and I am not so encouraged to think of myself and my family as part of an extended network of people whose needs all need to be negotiated somehow.

That got me thinking about how much our “public” spaces have been privatized. The New York State Thruway’s rest areas are not really public spaces in the traditional sense. Really they are a collection of private businesses that team up to provide a public service. The mall has become the new town square. And no, I don’t mean “mall” in the sense of “wide avenue or grassy space where people walk, gather and discuss the events of the day.” I mean “neon lit enclosed commercial space where people walk, gather and discuss the issues of the day so long as they don’t offend the owners of the space.”

And then I started thinking about the Internet and got very optimistic and then very depressed. The Internet and the World Wide Web, are incredible tools for creating powerful, decentralized, democratic spaces where free exchange of ideas is managed across nations and continents, not just across towns and neighborhoods. But who controls our access to the Internet so that we can make our spaces on the World Wide Web available to others? It was in answering that question that I got depressed.

For me, the first “who” is Verizon and when I looked at their Terms of Service I was very disappointed. (To spare my regular readers I will not revisit my TOS discussion in this post.) Verizon, the vehicle I use to connect to the internet, not only prohibits my using their service for illegal purposes like, say downloading or distributing child pornography, but also prohibits using their service in a way that is “sexually explicit, or graphic in nature.” They can immediately terminate my service at their sole discretion if I am found to be in violation of their policies. There are things I like about Verizon. For one, many of its workers belong to unions. But I looked at their terms of service and realized that I could be regularly in violation of it and that they could, should they choose, terminate my access to the Internet.

That’s my ISP. But let’s say I find an ISP that won’t consider what I do to be a violation of their Terms of Service. I still need a place to host a web site. Powweb, a hosting company recommended to me by a friend who has used them for years, prohibits material that would commonly be considered indecent, or would appeal to the prurient interest, and would also prevent me from linking to sites that do those things. Open Source Host, another company recommended to me by a friend who has been happy with their service for a long time also prohibits “sex-related links” including sites that “infer sexual content.” Not only could I not post such content myself, but I could not even link to it. And again, the company will be the sole arbiter of what counts as “sex-related.” I did find some hosting services that did not expressly prohibit sexually explicit content. AN Hosting and DreamHost, both recommended by, only prohibited sexual content that was illegal — i.e., child pornography. Another open source host, Laughing Squid, actually took the time to distinguish between “erotic photography” sites and “porn membership” sites, and explained that they don’t host the latter because of traffic issues. But the breadth of the prohibitions made by companies like Verizon, Powweb and OpenSource was startling. And there were others. Yahoo! Hosting prohibits material that “(ii) is threatening, obscene, indecent, defamatory, or that otherwise could adversely affect any individual, group, or entity (collectively, ‘Persons’)” and later excludes material that is vulgar or obscene. BlueHost, a company recommended by prohibits “pornography, nudity, sexual products, programs or services. Escort services are not allowed or other content deemed adult related.” All policies make it clear that the company itself is the “sole arbiter” of what violates its policies. (And of course these sites all separately prohibit expressly illegal behavior.)

Is this insane? No nudity? Nothing that could “adversely affect any individual”? And with these companies being the sole arbiters of what might be harmful, enforcing their policies at their “sole discretion”? How many of us are in regular violation of the terms of service of the major corporations — or small businesses — that control our access to this otherwise democratic world wide web?

I am convinced that, sexually speaking, we are about as schizophrenic as we can be. Yesterday I talked with my sister in Atlanta who told me that when she got up in the morning morning and turned on the television the news was reporting the story of a veterinarian in Japan who had had his arm bitten off by a crocodile (the event happened on April 11th). This was on a mainstream media channel on a large screen television. They showed the crocodile with the man’s arm in its mouth. Before breakfast. This is not going to be disturbing to children? The same channel also showed graphic coverage of the man who jumped from the Empire State Building yesterday. Not disturbing for children? But let a glimpse of Janet Jackson’s nipple escape onto the airwaves again — a nipple being something that lots of children are intimately familiar with and probably have happy memories of — and no doubt we will have another cultural panic about how disturbing that must be for kids. Severed limbs, okay. Healthy bodies, not so much.

Is there a cure for a schizophrenic society? I think there is, and I think we are part of it. We need to be inserting sensible, playful, compassionate, honest, difficult, and open discussions of sexuality (and bodies) into absolutely every cultural venue we can manage.

Of course in order to do that we may need to violate the policies of the companies that control our access to those “public” spaces.

Extra credit: Who controls your access to free expression online? Read the Terms of Service documents for the companies that control your Internet access or hosting. If you find that they are sensible and don’t exclude legal expression, drop a note in the Comments section below. I’d love to compile a list!


Filed under activism, censorship, culture, moral panic, public discourse, sex, sex and the media

14 responses to “You have the right to speak freely (in an increasingly limited number of spaces)

  1. Oh, let me post two comments, since they’re on different topics in your article.

    First, I suspect that a lot of the Terms of Service Agreements that you’ve considered aren’t all that enforceable if you got down to the nitty gritty. In our litigious society, remember that the corporate lawyers are going to get involved and cross every “i” and dot every “t”. Cover your ass (can I say “ass” here?)

    Having said that, that doesn’t mean that some of these big corporations won’t arbitrarily toss you offline, if you don’t play nice and “watch the sexual content”. It’s crazy, and yes, it is schizophrenic. If someone in one of these companies who think they are “someone” gets a wild hair, yeah, you can be refused service for just about any reason they want to.

    It’s their game and their ball and don’t you forget it.

    Oh gosh, what am I saying in this longish diatribe? Probably the same thing you are, Elizabeth. Internet access for us people is controlled by these large souless corporations, who play by their own rules.

  2. Second comment. Truly, we need to change the values in this culture from where sexuality is taboo in public and violence is accepted to quite the opposite.

    It’s rather trite right now, but we can sure as hell (can I say “hell”?) show a bloody stump or someone getting blown-up to pieces, but to discuss sex or show a breast (what about “breast”?) at half-time of the Super Bowl makes a big fuss in the media.

    Making headlines, of course, on all the newscasts, while more Americans and Iraqis die daily in the violence in Iraq. Which is barely mentioned.

    Come to think of it, maybe it was the other way around, people might stop the violence and enjoy sex.

  3. Wasn’t there a slogan about that back in the 60s? You know, something like “Make love, not war”?

    Seems we could use a bit more of that these days!

  4. Terms of service were _the_ determining factor in choosing my latest host. midphase hosting was cheaper and more of what i needed, but they prohibit sexual materials and a host of other things. hosts like a small orange and others have written far less objectionable ToS’es.

    when it comes down to it, though, no matter what, there is no public square on the internet. (or no sidewalk, as the draft that’s been hanging around my dashboard unpublished for 6 months says). no matter what, there’s always an ISP or webhost connecting your speech to your audience. it becomes especially evident when you want to criticize an overly litigious company (*cough* SG *cough*). there is always some company in the chain who will respond to a cease and desist letter. legally, we only have protection for the sidewalks outside their offices, but none for their home grounds.

    it’s a difficult problem to solve, since a government owned ISP or webhost (or god forbid, forum) really doesn’t sound capable of being as free a government owned sidewalk, mall, or square once was(as the NY highways prove). It might be possible to legislate ToS’es, but the odds of that going in favor of logic and reason (as opposed to pedophilia FUD), are increasingly small

  5. I rent, so I had no choice over my ISP (Road Runner through Time Warner Cable). According to the TOS I found online (emphasis mine):

    Subscriber shall not upload, post, transmit or otherwise make available on or via the Road Runner Service any material (including any message or series of messages) that violates or infringes in any way upon the rights of others, that is unlawful, threatening, abusive, obstructive, harassing, libelous, invasive of privacy or publicity rights, that
    in the circumstances would be obscene or indecent, that constitutes hate speech, that is
    otherwise offensive or objectionable, or that encourages conduct that would constitute a criminal
    offense, give rise to civil liability or otherwise violate any law.

    I wonder how these terms agree with the privacy statements?

  6. This is a very interesting post on a topic with which I’m well acquainted. It is very difficult to maintain hosting for highly controversial content even when you diligently ensure the legality of that content. I’ve had problems with some of the larger blogging providers on several occasions, Blogger has several groups of self-appointed morality enforcers whose only purpose at Blogger is to launch campaigns to pressure Blogger into removing legal but controversial material. Blogger regularly succumbs to their pressure.

    It’s sad that residents of the USA in some cases have to turn to European or even Russian web hosts in order to publish speech that is completely legal in the USA.

  7. Alex

    My net is through Optus, organised by a house mate.
    I am not allowed to use my internet to: “(ii) to transmit, publish or communicate material which is defamatory, offensive, abusive, indecent, menacing or unwanted,”. I also must stop doing something if Optus “reasonably believe” it is contrary to part of the terms of service.
    As the penality for not complying with this is suspension of service and they have yet to catch me I think I’ll keep ignoring it.

    There is also this clause: “(d) You acknowledge that, where the service is a carriage service, we, or any supplier whose network is used to supply the service, may be required to intercept communications over the service and may also monitor your usage of the service and communications sent over it.”

  8. eleventyurple

    I know that bigbiz hosting does not censor or attempt to control legal content, but they do charge a deposit for sites considered “adult”.

    Excellent article there(yours), too.

  9. It’s been a longstanding crusade of mine to try to get sexbloggers to move from free services to self-hosting. Partly, this is because I think that if you’re doing a long-term blog, it’s better if you have your own domain. It looks a little bit more professional and less temporary. But also, you are automatically in a precarious position with regards to your rights. You’re there pretty much at their whim, and they can yank you with little or no notice. Paying for your space gives you a lot more of a moral and legal foothold if they start to object. Despite your issues with them, I still think that is one of the best free servers. And also one of the best software systems if you’re serious about blogging. But nevertheless, it’s a free service, and you’re there out of the goodness of their hearts.

    That’s why I feel a lot safer with having my own space. I know where I stand, and I have some legitimate legal recourse. That being said, I’ve been giving some real thought to changing web hosts lately. I took a look at the Acceptable Use Policy of my host a while back, and it made me feel like I’ve been skating on thin ice for a while.

    Adult Material

    Because the Internet is a global communication tool, and we have clients from nearly every country in the world, it is difficult to dictate what is considered “adult material.” However, it is not our function to discriminate against those who choose to utilize adult content or adult related material. This being said, there are still several reasons why HostMagik has been forced to create its no adult sites policy for its virtual server users.

    What does HostMagik consider “Adult Material?”

    Any site whose revenue is gained in part or whole from its adult content. Photos or videos showing frontal nudity on either men or women for non-scientific or non-artistic purposes. Revenue-generating hyperlinks to sites with adult material.

    HostMagik reserves the right to decide what it considers “adult content”, “adult material”, “sexually explicit”, or “sexually related”. Let us know if you are unsure of the approval of your site before placing an order by submitting a sales ticket at

    Now, the truth is, I’ve been with these people for a loooooong time, and they’ve never bothered me about all the stuff I post. But that might have to do with the fact that I just don’t get that much activity.

    Right now, I’m seriously considering DreamHost. Lex Konrad really likes them, and I like their stated policy that they only object to child porn.

  10. I’ve been reading ToS documents nearly all afternoon and just came across one that expressly allows “adult content” while also acknowledging how difficult it is to define the same. Here is the statement:

    Because the Internet is a global communication tool, and we have clients from nearly every country in the world it is difficult to dictate what is considered “adult material.” However, it is not our function to discriminate against those who choose to utilize adult content or adult related material.

    The hosting company is called Web Hosting Buzz

  11. I liked that the WebHostingBuzz folks left their “it is not our function to discriminate against those who choose to utilize adult content…” statement at that and did not continue on as Chris’s did.

    I read DreamHost’s ToS, too, and they’re pretty clear about only prohibiting that which is actually illegal in the first place.

    Chris, I wonder if the reason that your hosting service hasn’t given you a hard time is that most of these companies don’t actually police their users unless they receive complaints. They can’t possibly have the time or the interest to scan much of what occupies their servers. But it bothers me to agree to a contract without having a sense that I can really live with it.

  12. Tom

    You want to see who REALLY respects Freedom of Speech these days?

    Check out Epifora’s _amazingly_ short TOS:

    It says right on their front page that they “accept controversial speech.” These folks deserve a lot of credit. As long as it is legal, they will host you. They even host pedophilia activism sites. How’s that for Freedom of Speech?

  13. Pingback: Make Love Not War « Notes From Neal

  14. Chris, I wonder if the reason that your hosting service hasn’t given you a hard time is that most of these companies don’t actually police their users unless they receive complaints.

    That’s probably got a lot to do with it. Plus, I don’t have that much adult material actually on the site — just the stray sample of quality smut. But still, the pictures that are there are enough that I could technically be in breach of contract, if they wanted/needed to push the issue.

    I want to say that I really have liked my time with them. If someone was putting up a site where they didn’t have to worry about adult materials, I would easily recommend them to HostMagik, mostly because their customer service has been great, and that’s something you can’t put a dollar value on.