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Internet Service Provider (ISP) Agreements

Why is a Well-Drawn Agreement Between an Internet Service Provider (ISP) and their Customer Essential to the ISP?

There is no doubt that the agreement between the ISP and their customer is designed solely to protect the ISP. From the ISP's perspective, it is an essential document.

ISPs do business in an area where the law is at best murky. For example, what's an ISP's responsibility if one of its dial-up customers is using his e-mail account to send threatening messages? What if that "two megs of free disk space" included with the account is used to post pornography? Should the ISP cancel the account? Should the ISP first notify the customer and ask them to stop doing whatever it is that they are doing? If the ISP should first notify the customer, how much notice should the ISP give?

What if the ISP cancels the account and the customer never gets the e-mail that would have closed a business deal worth one million dollars. Is the ISP responsible for those lost profits?

These are some of the scary issues that an ISP might face (scary for the lawyer giving the advice too!).

Let's look at some of the flip sides of these issues. If the ISP doesn't cut off the customer, is the ISP liable for damages to a person who is getting obscene e-mails from the ISP's customer? Is the ISP criminally responsible for pornography posted by their customer on the customer's web site which the ISP's computer hosts?

The law is extremely unclear in these areas and many other areas. This is where a good agreement can save the ISP.

Legislatures and courts make "public law." "Public law" is law that is applicable to all of us. In many areas of concern to ISPs, there is a complete absence of "public law." The answer is to create "private law" or what we commonly call a "contract" or "agreement."

In a well-drawn agreement, the ISP and the customer can answer many of the questions raised above. For example, the agreement could provide that the customer may not use his account to send e-mail which could be deemed threatening. If the customer does so, the ISP reserves the right to cancel the account after one warning.

Now when the customer misses the "million dollar e-mail," the ISP is safe if the ISP carefully followed the cancellation procedures in the agreement. The parties created "private law" between them and the ISP can find a safe haven there.

This same principle applies in other areas. If the parties have an agreement on an issue, the ISP can act based on procedures created by that agreement. It can take much of the mystery out of how to deal with situations that can and do come up for the ISP.

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