Up for general discussion.. Comments like the one below appear from time to time on WHT and I'd just like to hear your opinions concerning this issue. Hosts and Site Owners alike... yes but all companies do this

only irresponsible ones or ones that dont care for its customers apply them like this

whether or not its written down in the t+c's its still pretty unreasonable to delete the entire servers contents Contracts that are legal, but immoral, are still enforceable. Regardless of the specific situation that caused the above comment, I see many site owners say something along the lines of "It doesn't matter what's in the TOS, every host does that just because they have to. It doesn't mean they have to follow what it says" almost as if the hosts spend the time and money writing the terms for no reason at all.

As a society have we become so blinded to the reasons the "rules" are posted and agreed to? Do you believe the hosts put these terms up just to look good and that they do not intend to enforce them?

So a client of yours did a silly thing like send spam. Should the host just tap you on the shoulder and say "Hey, can you go talk to them please..thanks" and leave it at that? As long as you aren't knowingly allowing them to send spam then your upstream (in this post "upstream == host, colo provider, bandwidth provider, whoever is in final control of your connectivity) shouldn't really penalize you and certainly shouldn't terminate you right?

I've seen a lot of bashing about certain "upstreams" that are being "too harsh" on their clients for things their client's clients have done.

Here's a dose of reality...

Qwest - http://www.qwest.com/legal/usagePolicy.html Email and Unsolicited Messages. Users shall not use the Qwest Network and Services to transmit unsolicited e-mail messages, including, without limitation, unsolicited bulk email , where such emails could reasonably be expected to provoke complaints ("spam"). Further, Users are prohibited from using the service of another provider to send spam or to promote a site hosted on or connected to the Qwest Network and Services. In addition, Users shall not use the Qwest Network and Services in order to (a) send e-mail messages which are excessive and/or intended to harass or annoy others, (b) continue to send e-mail messages to a recipient that has indicated that he/she does not wish to receive them, (c) send e-mail with forged TCP/IP packet header information, (d) send malicious e-mail, including, without limitation, "mailbombing", (e) send or receive e-mail messages in a manner that violates the use policies of any other Internet service provider, or (f) use an e-mail box exclusively as a storage space for data.

Suspension; Termination. Any User which Qwest determines to have violated any element of this AUP may be subject to a suspension or termination of service, and if Qwest deems it necessary, immediate suspension or termination of such User's service without notice. Qwest may take such further action as Qwest determines to be appropriate under the circumstances to eliminate or preclude repeat violations, and Qwest shall not be liable for any damages of any nature suffered by any Customer, User, or any third party resulting in whole or in part from Qwest's exercise of its rights under this AUP. Epik - http://www.epik.net/services/svcs/ip_acceptable_use_policy.pdf EPIK customers are prohibited from transmitting unsolicited e-mail messages to any person who does not wish to receive it. This includes bulk unsolicited commercial e-mail (UCE), also known as “spam” or “junk e-mail”. In the case of commercial e-mail including but not limited to advertising, informational announcements, political tracts, such material may only be sent to persons who have explicitly requested to receive such information. Further, if such a person makes an explicit request that they cease to receive e-mail from a customer, customer must refrain from sending any further e-mail to that person. Forging of e-mail header information is not permitted. EPIK customers are further prohibited from hosting sites that generate unsolicited e-mail even if the same does not originate from
such site. E-mail denial-of-service attacks (mailbombing, etc.) are covered by section 3 (Denial of Service). Customer assumes liability for any economic penalties assessed to EPIK as a result of unsolicited messages, including charges assessed by other providers under current or pending state or federal legislation.

EPIK reserves the right to immediately terminate the service of any customer found to be in the violation of this Policy. In the event a subscriber is found to be in the violation of this Policy, subscriber shall pay EPIK the remaining balance of payments for the current term of this Agreement. Upon termination, all outstanding payment is considered immediately due. Cogent - http://www.cogentco.com/policy.html Sending unsolicited mail messages, including the sending of "junk mail" or other advertising material to individuals who did not specifically request such material, who were not previous customers of the customer or with whom the customer does not have an existing business relationship (e.g., E-mail "spam"); or distributing, advertising or promoting software or services that have the primary purpose of encouraging or facilitating unsolicited commercial E-mail or spam.

Cogent may immediately suspend and/or terminate the customer's service for violation of any provision of this policy upon verbal or written notice, which notice may be provided by voicemail or E-mail. Prior to suspension or termination, Cogent attempts to work with our customers to cure violations of this policy and ensure that there is no re-occurrence; however, Cogent reserves the right to suspend or terminate based on a first offense Genuity - http://www.genuity.com/aup/aup.htm Users are prohibited from engaging in improper use or distribution of electronic mail ("e-mail") over the Internet. Without limitation of the foregoing, it is strictly prohibited to engage in any of the following activities: ...

Violation of this Acceptable Use Policy is strictly prohibited. In the event of any actual or potential violation, Genuity reserves the right to suspend or terminate, either temporarily or permanently, any or all services provided by Genuity, to block any abusive activity, or to take any other actions as deemed appropriate by Genuity in its sole discretion. Did you know, that if your 'upstream' doesn't handle you as the "violator next in line" seriously and forcibly they could loose their connectivity?

Is your $5 to $5,000 a month account worth it to them? When put into perspective, when you ask a host to "be nice to you" for something one of your clients did, you are asking them to put ALL of their clients at risk as well as their entire business because you are asking the host to put their primary connectivity at risk of termination...

Thoughts?

Interesting thought Deb. I for one always like to follow the rules. I admit I may be the last person on earth to read a ToS or the software agreement with most software, yes I do read them. And I agree if the host set forth rules that were agreed upon when the contract was signed then they should be abided.

I, however, personally hate the clauses in ToS or contracts in which the host says, something along these lines, "we reserve the right to make changes to these rules at anytime without your prior consent". When I see those type of clauses I usually run! :eek:

But if you knowingly go into a contract and sign it knowing that clause is there you have no one to blame but yourself for anything that may happen because that one line gives them blanket authority over anything they may do to you now or in the future, as changing their ToS is as simple as opening their favorite ASCII editor.

However if the clause was, and I am going to make sure we have this in our clause now that I think about it ;), we may change any parts of the ToS however we will notify you, and give you *whatever amount of time* to comply".

My 2 cents (not even worth that much :( )

I, however, personally hate the clauses in ToS or contracts in which the host says, something along these lines, "we reserve the right to make changes to these rules at anytime without your prior consent". When I see those type of clauses I usually run! Did you know that the upstreams posted above all have that clause as well... therefore the host has to follow through because even if the host is willing to let their clients know when something changes, the upstream may slide something in the host itself wasn't aware of...

The contracts we must sign to obtain these high speed lines also tend to include something like "It's your responsibility to ensure your clients abide by our AUP" ...

Placing a note in your AUP saying you will notify them, if you yourself are bound by terms that state the opposite might get you in trouble down the road :(

This is an issue I myself have been slapped with this month and it's got me irritated to no end...but it is current reality none the less and something many of us need to be aware of.

Nice work Deb, it's common sense to point out what we must watch out for, but it is good to "Smack" em with reality now and again, and this my dear you have done exceedingly well.

Very nice work.

ouch then I am at lost. I guess the only way to circumvent it is get your own OC24 line and telco CO and plug directly into, or become, and internet backbone. :(

eyow, even if you become a backbone you still have to do business with other backbones which means any traffic from your backbone to their backbone must abide by their TOS & AUP so there really is no way around it without building a replacement for the internet.

Originally posted by DanielP
building a replacement for the internet.


Now that just does not sound fun.. :)


Deb i feel for you.. Just had to shut a spammer down today.. They have called about 100 X begging to have there site back.. If its a spammers i just tell them to get the hell out of here.. Bad thing ever now and then you get this new guy to the internet looking to make money.. Hey thats great but some spam site puts hey sending 30,000,000 emails will make you rich in 24 hours.. Well you know what happens next.. Said thing is i just had to do this to some guy.. I kind of feel for him but at the same time i have to think about all the other users.. Even if they say hey I will not do it again 99.9% of the time we still don't turn them back on..

But your upstream should never give you any problems unless you don't shut down the spammer(s) or what ever it may be. Mine just sends me a nice email and says hey did you know about this guy or hey look at this site i think you should remove it.. :)

Just my 2 cents..

Originally posted by DanielP
eyow, even if you become a backbone you still have to do business with other backbones which means any traffic from your backbone to their backbone must abide by their TOS & AUP so there really is no way around it without building a replacement for the internet.

Well I'm :confused:

I believe there are only a limited number of backbones out there yet we still get SPAM. I mean the people spamming us and what not still have to send traffic thru the backbone somehow. If so, why are they not stopped because of the TOS & AUP?

Man I'm really :confused::dunce:

Sure, their stopped and terminated by the TOS & AUP but they just move around, the spammers don't signup direct with the backbone for the most part, they signup with hosting companies and spam from there.... so you figure a a few tens of thousands of hosting companies to pick from to use for spam... it'll take em a while to run out... even then they just change their name.

Originally posted by Deb
Did you know that the upstreams posted above all have that clause as well...

Personally I would have thought this to have been a given. Which is why I was quite surprised to see many flaming Rackshack. It's as though SPAM sucks except when it involves Rackshack exercising their Terms and Conditions to cut it out (or Rackshack doing anything else at all really...). To the point of Rackshack now not even being even worth considering? Good, leaves more room for others.

If folks aren't looking past their own monthly bill and how much they can make on top of it, to the bigger picture of the responsibility that hosting even the Jones family album site involves, then this is going to happen more and more.

Hosting is not a game. But it sure makes for some interesting sideline views.

Cheers

Gary

I think more people had a problem with RackShacks' format of the drive. The deletion of all files. I didn't see where anyone said that RS shouldn't have removed the offending site. But, IMHO, there is a big difference between removing the site and deleting the contents of the server.

Deb, I agree that any offenses should be dealt with swiftly and forcefully. I would not go along with RS formating a box over it though. (provided that is what happened in the referenced case)

But once more everything that is being said is all a matter of supposition and speculation. We are not going to know what is TRULY going on till either party speaks up.

Since I have not heard from either party, I am assuming that some sort of legal action is ensuing, and neither party can comment on it. Which would make the notion of RS formatting the drive more truthful, because if they did have the drive still available I am sure they would turn it back on and have HP remove the offending site.

But once more I just add more speculation to the already curious goings on of HP and RS. :)

I seriously doubt there's any legal action being taken. There's probabbly just nothing for RS to add to the story. Its really simple thou.


Server got Canceled for spamming.

Canceled server was put back into the system to be sold.

System was formatted and sold before client got intouch with rackshack to stop it.

Rackshack was well within their bounds to do what they did, just because they formatted the drive doesn't mean a thing, the server was already terminated. Being terminated due to a TOS violation means they can do whatever they want with that server.

I figured, without hearing the whole story, that this wasn't done intentionally/maliciously as a part of taking Hostpacket down. It's obviously not part of standard procedures in at RS otherwise Robert wouldn't have been able to open up the old CW server for clients to access their data. It would have all been gone the moment it was decided that CW had done a runner on their bills and their services were being withdrawn.

Faulty and resigned drives get queued at RS for restoration. I know...because we were fortunate enough once to get one back off the shelf and into a server for data retrieval. Perhaps the timing was against Hostpacket, and the drive was shuffled through and formatted all within a short period. I just can't see Rackshack saying to themself "quick, format that drive before we sell him another server"...they wouldn't have the time to be so pedantic. :)

Cheers

Gary

I've skimmed a lot of this (including the other threads), but as a server operator, selling virtual hosting, I'd be seriously disgusted with our upstream if we got canned because some clown signed up and started firing out junk.

We had a spammer at the start of the year. He got canned three hours after he signed up. Last week I found our main IP on a blacklist because of it. E-mailed the owner of the list and had the IP removed.... 9 months after it got RBL'd.

The route of action is (and should be):

Provider leases the server to host
Host watches client signups
Host cans spammers without refund as soon as the complaints come in
Provider acknowledges Host's efforts to contain spam

alt.scenario

Provider leases the server to host
Host is a lazy ass that doesn't give a fig
Spammer signs up and shoots off a few million ads for penile enhancement
Provider sees it continue and halts the box
Provider informs lazy ass host to do their job as good net.citizens
With no response, Provider closes box

There's a relationship between the provider and lease holder of the server that should be maintained at all times. (We certainly have it). If a breakdown occurs over something as simple as shutting down a spammer, then I'd seriously suggest looking at a provider who will better listen to their customers.

Regardless of the 'real' story here, I do feel sorry for Joe Public who went and got hosting expecting his site to be there when he woke up, and had it disappear because of a spammer, and a lack of communication

Greg Moore

Hello
A TOS can't include a clause that the provider will inform customers of changes because no company has accurate email details for customers.
Its impossible.

About 30% of our customers do not furnish us with a current email address.
Within 7 days of signing up with us 10% have stopped using the email address they signed up with (based on bounced email's sent out within that first week)

It would be impossible to base the enforcibility of a TOS on the necessity of sending updates to customers.

Gordon

Can't? Or you won't?

Nothing is impossible, only if you "Think" it is.

OK

If its validity is dependednt on you updating people you need to be damn sure you CAN update them.

In practice this is IMPOSSIBLE as you will NEVER
have a 100% up to date email list and you cannot GUARANTEE
email delivery.

QED

Gordon

So what>? Do your best, if they choose not to keep their contact information update, that's on them.

I think at the very least, a host should notify the customer of complaints and give the customer a chance to respond/explain before just terminating or suspending their site.

I have an e-mail sign-up list on my site -- it's double opt-in, so people have to confirm they want to receive my mailings. I NEVER put anyone on the list that hasn't gone through the sign-up process and confirmed their subscription. Yet I periodically get someone writing to me complaining about spamming them. I've also had a couple write to our hosting company claiming I'm spamming them. If we were subject to be summarily shut down merely on the basis of such a complaint, I'd have to just discontinue the e-mail list altogether rather than risk that.

Originally posted by akashik

The route of action is (and should be):

Provider leases the server to host
Host watches client signups
Host cans spammers without refund as soon as the complaints come in
Provider acknowledges Host's efforts to contain spam

alt.scenario

Provider leases the server to host
Host is a lazy ass that doesn't give a fig
Spammer signs up and shoots off a few million ads for penile enhancement
Provider sees it continue and halts the box
Provider informs lazy ass host to do their job as good net.citizens
With no response, Provider closes box

These scenarios described by Greg are easy. How about one like this:

A long time client who has always seemed responsible and concerned about the others whose sites reside on the same shared server where his site resides, and the internet in general, has a little mailing list. There's a subscribe form on his site. You enter your email address in the form, and you are now a subscriber to his list. (No confirmation notice requiring reply is sent.)

For a couple of years there is no problems, no complaint. The client doesn't realize there is any potential for trouble, and doesn't realize that without a confirmation on the submitted email addresses, that there COULD be a problem.

But then one day, someone reports him for spam. A very angry report, saying, "I never subscribed to this #@!%$#@ newsletter!" and they include a cc to your upstream as well.

Now, if you don't terminate that account, you are in trouble with your upstream.

You might think this would be a reasonable situation, where you could try to "educate" your client, as to how to properly operate his mailing list, and have him convert it all to a confirmed-opt-in list. (See http://cluelessmailers.org/info/listmanagement.html ), and give him one more chance. But the fact is that if you do not terminate his butt, you may lose your upstream connectivity.

What to do...what to do...?

Of course, you would be in worse situation if you don't terminate this unfortunate client, and lose your upstream, and then have LOTS of clients mad at you, plus the problems due to lost connectivity. So, of course you terminate him. Or do you?

fixing my grammer/spelling mistakes...

sonjay, if your list is double-opt-in and you can show, for every email address on your list, that you have such a confirmation, then you should be OK. At least, that is my understanding of the situation.

Deb, I'm all with you. However, the DC needs to investigate the spam complaint for it's validity.

Also there's a big difference between

1. Just terminating an account.
2. Terminating an account and formatting the hard disk drive as punishment.

Originally posted by Deb
Contracts that are legal, but immoral, are still enforceable.

Wrong Otherwise I could have terms of service that says I can seize your home, break your kneecaps etc etc - and get away with it.

Great murder defence - sorry not guilty it was in my terms of service...

Relating criminal activity and service level agreements don't work, it makes no point. Say that without the Violent comments

OK How about if you spam, I will seize and destroy your property

Anything can be legal in a terms of service as long as it does not violate state or federal law. Granted if you wanted to seize someones home you'd need a real signature to get it to hold up in court, but it would if you had that and followed the law in such cases. Banks take homes all the time for people not paying their mortgage

Originally posted by Crypto


Wrong Otherwise I could have terms of service that says I can seize your home, break your kneecaps etc etc - and get away with it.

Great murder defence - sorry not guilty it was in my terms of service... As the quote notes... I did not say "Contracts that are immoral are legal" nor did I say contracts that are illegal are enforcable". I said "Contracts that are legal, but immoral, are still enforceable. "

Breaking knee-caps etc isn't legal so does not apply to my comment.

Ture enough, but is the intentional or negligent destruction of data legal?

If it was a work of art, or a manuscript you had written, or data you had collected for research......

I would say no, but like much of IT law it would be worth taking to court just to have a clear precedent established.

If I could afford a lawyer - and the possible costs of losing, I would be making a claim against Rack Shack and Host Packet just to find out. It has all sorts of contractual implications and obligations.

Pity you actiually have to bring a case against someone to find out though, pity courts can't hear "template cases" to establish precedent before the event.

cheers

If I could afford a lawyer - and the possible costs of losing, I would be making a claim against Rack Shack and Host Packet just to find out. It has all sorts of contractual implications and obligations. Let's say it was wrong.... considering the fact that we are talking about soft data... I see the following showing up in the AUPs, if it's not already there...

Deletion of all content without backup provisions will occur upon termination. (that's already in most)

and/or

All Data Uploaded to the server is considered a copy of the original data which remains in the Account Holder's posession therefore removing any liability of the "host" for the protection or storage of such data (already in most in the area of backups)

Therefore negating the issue of "they deleted my stuff"

DISCLAIMER:
I'm not defending the AUPs or the laws here...just pointing them out as I myself am forced to try to find the happy medium of true and correct services while being bound by the same rules and held responsible for the actions of my clients.

Originally posted by Deb
All Data Uploaded to the server is considered a copy of the original data which remains in the Account Holder's posession therefore removing any liability of the "host" for the protection or storage of such data (already in most in the area of backups)


Mmmmm OK, how about sites that collect data, like mine, it attempts to collects stats from people in the IT industry about their employment mode, how long they are out of work, what sector they are in etc etc

That data is irreplaceable - ignore the fact that I need good backup procedures for this type of thing.

:bawling: :mad: yep :mad: :bawling: