New AT&T terms of service

AT&T DSL customers have received their new Terms Of Service today; no surprises. Essentially, DSLreports.com was correct. We are now metered. No surprise. But the new TOS raised a couple of red flags in my mind.

One item of note; I'm not sure if it was in the previous Terms Of Service, but it seems significant:

Violation of Intellectual Property Rights: IP Service(s) shall not be used to publish, submit/receive upload/download, post, use, copy or otherwise reproduce, transmit, re-transmit, distribute or store any content/material or to engage in any activity that infringes, misappropriates or otherwise violates the intellectual property rights or privacy or publicity rights of AT&T or any individual, group or entity, including but not limited to any rights protected by any copyright, patent, trademark laws, trade secret, trade dress, right of privacy, right of publicity, moral rights or other intellectual property right now known or later recognized by statute, judicial decision or regulation.

I am not sure how AT&T might determine that a user has violated someone's intellectual property rights, but I am assuming that this might include observation or examination of sites visited, as well as files downloaded. It's widely assumed that all 'net services that define themselves as "broadband" throttle P2P traffic. Is the active monitoring of an account ethical? While it may be legal, I'm not sure that it's ethical.

Significantly, AT&T is assuming a rather broad police authority over a customer's usage. Is this appropriate? Do other ISPs do this? I don't know. We all know that the RIAA has targeted specific users with allegations of violations of IP rights and have issued subpoenas to the offending users' ISP. Some ISPs comply; some don't. The most common argument that non-compliant ISPs make is that they do not have the time or manpower to track down the users when there's no benefit in it for them. Does this clause suggest that AT&T will actively assist various Intellectual Property claimants to the detriment of their users? And if they assist the RIAA and other IP rights claimants, will there be a monetary benefit for AT&T?

Will AT&T monitor their users' activity online to the extent that they prohibit free expression? For example, if I decide to defame AT&T on this blog; or if I slander someone; if I post negative remarks about a powerful politician... Will AT&T yank my service?

The slippery slope toward effective censorship can begin rather innocuously when a service provider suggests that their users need to be "monitored" for [fill in the blank] activities.

I did visit the the "My Usage Details" site that AT&T has been running since January of this year, and my usage (surprisingly) does not exceed the cap. My January total was 109 GB. I will freely admit that I am a heavy Internet user, and I will have to say that the 109 GB total is probably in line with what I actually used.

Now, the digerati have generally argued that placing usage caps on broadband service is simply a grab for money, and is not dictated by economic necessity; in other words, excessive usage does not really cost the ISP that much. Instead, the ISPs are using the actions of a few heavy users as a justification for imposing caps on everyone, which are not justified by any excess costs incurred by the heavy users. It's a persuasive argument.

Nevertheless, since there's nothing I can do about the cap on my DSL service, what I *will* do is divert much of my traffic to my unlimited 3G account, which I have had for four years and have barely used.

Now, it seems irrational that a company would place a usage cap on a wired service, where overages might cost a few dollars, when the effect will be to drive power users to wireless data, where there are bandwidth constraints. But AT&T has no choice; unlike wired DSL service, where AT&T has no real competition in many markets, there *is* competition in the wireless spectrum.

This suggests to me that the future is wireless broadband, and ISPs that cling to outdated wired services are dooming themselves to extinction.