Protection From Online Eviction?

AOL has been shutting down its free Web services, in some cases with little or no notice to users, and they are not the only ones. This blog post on the coming "datapocalypse" makes the case that those who host Web content should be required to provide notice and access to data for a year, and be held strictly accountable the way landlords are before they can evict a tenant. Some commenters on the post argue that you get what you pay for with free Web services, and that users should be backing up their data anyway. What do you think, should there be required notice and access before online hosts take user data offline for good?

Comments

Nuts

[EdIII]

What has happened here was not eviction. If we are going to use that word correctly, that is.

Evict (evicted, evicting, evicts) - To put out (a tenant, for example) by legal process; expel; Law to recover (property, for example) by a superior claim or legal process.

Tenant - One that pays rent to use or occupy land, a building, or other property owned by another.

Unless those people paid for a web hosting package, they have zero recourse and they cannot be evicted as they never paid a dime for anything. They should not have any either.

I am sure there was some sort of TOS agreed to that it was for free and no guarantees were going to be made to it's avaiabilbity, backups of data were the users responsibility, etc.

This seems to be some sort of insane sense of entitlement by some people. Some delusion that servers, data storage, and bandwidth are free. That once they find their place to squat that "they are owed" something by the people that actually own that space.

Huh?

That's ... ridiculous. "They've gone plaid".

It was a free service and the web hosting providers have every right to do whatever the hell they want. There is no 99.9999% uptime SLA. It's called, "It's free. So sit down, have a coke, and shut the fuck up" SLA.

The argument that there has to be some sort of socialist laws guarantying free and protected web space to the people is just nuts.

Anyone wonder why property investors avoid certain parts of the East Cost US like the plague? It's because they have those laws there that can keep a squatter in a place for 9 months WHILE THEY DON'T PAY A DIME TO THE LANDLORD. Meanwhile, the landlord is paying a mortgage, property taxes, insurance, maintenance, etc.

Those people are parasites.

Re:Nuts

[EdIII]

Okay, politeness is nice and all. As long as we can agree it's not actually legally required.

This is not so much about AOL as it about and it is more about what the author of the article is stating. From the article, the gentleman makes it sound like a call to arms for the oppressed and downtrodden. He is making into some sort of social injustice issue and that only laws will force the web hosting providers into doing the "right thing".

So it would be in the best interest of those providing free services to treat their subscribers nicely since they get plenty of ad revenue from it. That's fine and dandy. It's just not legally required.

Re:Nuts

[rhizome]

Okay, politeness is nice and all. As long as we can agree it's not actually legally required.

Correct. As stated many times, there is no law against being a dick.

Re:Nuts

[b4upoo]

It is not just the east coast that can be punitive in regard to land owners. Squatters can often cost a fortune and take years to evict in many states.
          However I don't feel sorry for these landlords getting stuck at all. Many times they are arrogant and terrorize tenants with illegal actions. For example I know one old creep who refused to repair a septic system with the claim that since a tenant lived there the tenant must pay for the work. The guy knew just how to get revenge and paid to get the sewer system fixed and stopped the rent dead cold. It took close to a year to get him evicted and the loss of legal fees and rent was a stunning lesson to that landlord. And in Florida collecting a judgment can be impossible so the tenant knew full well that he had won the battle.

Re:Nuts

[EdIII]

If something has been advertised for free, the payment is still there, it's just zero.

Uhhh, Sorry but a "payment" must be non-zero by it's very definition. What you are trying to say is that you can construct a contractual agreement (TOS) without any sort of compensation. "Free" and "Payment" are mutually exclusive in any language on Earth.

I think a livable solution would be a two-weeks notice, and a two-weeks extension for those who ask for it, and also a way for people to pay for getting the data delivered on a CD/DVD or similar (i.e. a stupidity surcharge).

May be a nice solution and a polite one, but it should never be a legal requirement in a contract for web hosting providers that offer free service.

The law is clear. If you are staying someplace without any contractual agreement or non-zero form of compensation the property owner can have the police forcibly remove you at will. No judge will support your claims for damages either. They will throw your case out of court since you never paid anything.

There is a big difference between the law (various contract laws which govern contracts) and what is the "nice and warm fuzzy" way of doing things. It is often in companies best interests to get as close to possible as the "nice and warm fuzzy" way of doing things since it increases customer satisfaction, but it is not required by law.

Re:Nuts

[calmofthestorm]

Violation of TOS is pretty different than a site closing itself down. Still, I agree, it's kind of silly to require them to keep it up. We'd just see

1) Free hosting services stop because of liability
2) Use of loopholes to circumvent this ill-conceived law
3) Legal challenges (unlikely)

Re:Nuts

[calmofthestorm]

Actually under contract law many contracts require "consideration" be paid.

Case in point: NDAs. An NDA is only legally a binding contract (US-Centric law here) if the signer receives compensation in some form for it. For example, in job interviews the NDA is usually reciprocal: we don't talk about you, you don't talk about us. In others it's a lunch.

In many contracts you get or give $0.01 or $1.00 just to make sure it'll stand up.

Re:Nuts

[m.ducharme]

You're forgetting something very important: the law does not require that one party pay money for a contract to exist, only that there is some consideration. If AOL is providing a service for free, then you're correct. But if AOL is providing a service in exchange for showing you ads, or data-mining your surfing habits, then you are paying for the service and AOL is bound by the terms of the contract. If those terms include clauses stating that notice has to be given, then AOL has to give notice. If not, then the user is shit out of luck, should have bargained harder.

Courts are very leery of making judgments on the value of the consideration (the price you pay) preferring to let contracting parties work out how much of what is worth the service or good contracted for, so I'm pretty confident that a judge would find that exposure to advertizing or data-mining would constitute sufficient consideration.

Also, in contract law there is the notion of unconscionability, specifically that where one party to the contract is grossly more powerful than the other, the court can make decisions in favour of the less powerful party that would otherwise run afoul of contract law. True bargaining only occurs between equals, and the law has long recognized that.

It's this principle that is the source of the renter's protection laws that you despise so much. Tenants get these protections because they would otherwise be powerless against their landlords, who could impose terms with impunity (pay up, or I'll throw you out on the street! And no, I won't get rid of those cockroaches! Too expensive!). You may not like it when poorer tenants are protected against their landlords, but I bet you don't object so much when you want to return something you bought under warranty. Warranty and consumer protection laws derive from the same principle of law.

And lastly, if the cut-off of service wasn't mentioned at all in the TOS, the customers may have a remedy in tort for damages. The TOS would have to explicitly waive liability on cessation of service to exclude recovery in tort.

(note that of course, I am not a lawyer, this is not advice, blah blah blah.)

Re:Nuts

[mdwh2]

GMail is a good example - I can't help thinking that if Google decided to delete all the GMail accounts without warning, there'd be an uproar on Slashdot. I wonder how many of the "It's free, and they should've backed up" commenters here have full backups of their GMail accounts?

Re:Nuts

[PopeRatzo]

You don't think we pay for Gmail? I hear a little cash register ring every time I see another targeted advert.

2008 was the year that it was discovered that not paying for something does not equal getting it free. Hell, the hysterics over at Wired Magazine had a whole issue about how much money can be made by not charging for stuff. Had a really ugly neon cover, too. I had to tear off the front cover before placing it in the bathroom next to my TV Guide and ashtray.

Re:Nuts

[1729]

In Wisconsin you are not allowed to evict a tenant between November and March (IIRC). The idea is that people can freeze to death without a home.

This is a common belief, but it isn't actually true. See here:

http://www.portagelawyers.com/pamphlets/landlord_tenant.asp#A8
http://www.legis.state.wi.us/statutes/stat0704.pdf

No, there shouldn't be

[johannesg]

What is needed are clear terms of usage. If those state the owner of the free service can take the site down with no advance warning and without providing access to the data, they can do so. The site owner in turn can decide whether he wants to deal with such a free service or not.

Re:No, there shouldn't be

[SirLurksAlot]

What is needed are clear terms of usage.

What in the world are you talking about? All of the sites in question have a nice link to AOL's TOS at the bottom of the page. Their TOS is fairly specific about what you can expect from the service (in this case pay attention to points 6, 17, and 18), which is absolutely squat if they say so. The services are free, what else would you expect?

I agree that there are a lot of problems with the TOS for many services, but those problems usually don't stem from being unclear (most of the time), they stem from the fact that most TOS are downright draconian, spelled out to the letter and leave the consumer with negligible wiggle room.

Why is this even an issue

[Rix]

You obviously have to have a local copy of your data at some point. Why are you deleting it?

You get what you pay for.

[retech]

It's free, so how can anyone complain?

Don't back up? Sucks to be you.

[mcdonald.or]

Anyone who uses a free webhost and doesn't have a backup of the website is completely without my sympathy if the free webhoster decides to delete the site.

If the site is important, spend the money for a hosted site, it will probably cost less per month than your internet connection. Besides, most ISPs give you a site with your connection.

Even if you have paid for a site, you should have your own backup. At least one.

6 weeks isn't "little or no notice"

[bcrowell]

Huh? As far as I can tell from the links, they gave about 6 weeks' notices for all these things. That seems to me like a very reasonable amount of advance notice, considering this is a free service. If users had a small amount of content, then they can just cut and paste it into a word processor to preserve it. If they had the world's most extensive blog, with hundreds of thousands of words scattered through thousands of posts, and six weeks isn't enough time to evacuate ... well, they shouldn't have entrusted such an important part of their life to a free service without making regular backups.

Re:6 weeks isn't "little or no notice"

[Larryish]

If they had the world's most extensive blog, with hundreds of thousands of words scattered through thousands of posts, and six weeks isn't enough time to evacuate ...

Such a person needs to archive their entire website.

There is one such utility that comes to mind. It is called HTTrack and is freely available for a variety of platforms.

From the site:

HTTrack is a free (GPL, libre/free software) and easy-to-use offline browser utility.

It allows you to download a World Wide Web site from the Internet to a local directory, building recursively all directories, getting HTML, images, and other files from the server to your computer. HTTrack arranges the original site's relative link-structure. Simply open a page of the "mirrored" website in your browser, and you can browse the site from link to link, as if you were viewing it online. HTTrack can also update an existing mirrored site, and resume interrupted downloads. HTTrack is fully configurable, and has an integrated help system.

Been using it for years and it works VERY well.

Good warning

[HalAtWork]

This is a good warning at a time when cloud computing is becoming a popular concept to both businesses and software developers. Businesses will hopefully make it a priority to invest in and expect cross-compatible solutions and keep local backups. Software developers will hopefully listen and make these options available, even though it may be in their interest to lock up that data.

In addition, it will probably affect a lot of users who store important information or contacts lists or conversation histories that may need to be referred to daily by these individuals, and serve as a warning to them as to what can happen if they start to store a lot of important data that they cannot easily backup for use in applications that may not always be available.

Of course

[Paradise Pete]

Yes, absolutely. There should be a law against anything that might cause even the slightest inconvenience. Nothing bad should ever happen to anybody, and if it does, someone has to pay.

Here we go again...

[dkf]

In the computer room at my college, many years ago, there was the following sign:

Rule 1: Always make a backup.
Rule 2: Always make a backup. (This is a backup of Rule 1)

Just because things are now on Web 2.0 services over the internet doesn't change the fundamental dictum. If you care about the data, it is you who needs backups. If you don't make backups, obviously you don't care (enough)...

Re:Here we go again...

[pondlife]

In the computer room at my college, many years ago, there was the following sign:

Rule 1: Always make a backup.
Rule 2: Always make a backup. (This is a backup of Rule 1)

Just because things are now on Web 2.0 services over the internet doesn't change the fundamental dictum. If you care about the data, it is you who needs backups. If you don't make backups, obviously you don't care (enough)...

What about Rule 0:

Rule 0: the following rules apply only to techies, who are the only people capable of understanding even the basic issues involved

Seriously, if you provide a consumer service of any kind, and you expect the consumers to do anything more than just use the service, you are seriously deluded. People - including, I suspect, many techies - will never do anything more than chat/download/email/surf/whatever.

My bank doesn't tell me to back up my account details in case their internet service goes down, why should anything else be different? Yes, that's a rhetorical question, and of course you and I understand the difference, but why should anyone else?

Anyway, the point is that this is not even a technical issue: it's a business one. How do you persuade people to start paying not only for "free" services (Facebook) but "worthless" invisible ones (a backup of your Facebook data)?

If you can solve that, let us know. Until then, going on about backups is only preaching to the choir. Most of whom have probably had a nasty experience with things going wrong already... :-)

Re:Here we go again...

[Bill, Shooter of Bul]

Please tell me there was another sign in the laundry room reading

Rule 3: Always make a backup ( This is an offsite backup of rule 1)

What AOL is...

[jcwren]

...is the public housing project of the internet.

Remember MP3.com?

[mcrbids]

I remember MP3.com around the year 2000, when it was actually cool. Indie bands could post their music in any of zillions of genres, and you could listen with a click. I fell in love with one particular genre, the New Age genre, which consists of lots of trance tracks. But when MP3.com started down the "we host your CD library for you!" I knew that the game was about up and that they were about to be sued into oblivion (which happened), and wrote a bash/wget script to download everything I could of the MP3s. I still have this collection of MP3s today, almost 10 years later. In fact, I'm listening to it right now.

Aren't backups great?

If you care, take a look at the SLA. And if it's free, don't cry about not getting what you didn't pay for in the first place.

As someone who owns some servers...

[davmoo]

I own a few servers, and both sell hosting to paying customers, and give free hosting to some friends.

I try to always keep everyone informed on what's going on. Last time I upgraded one server to a newer model, I gave everyone on that server 4 months notice and kept the old server running for 2 more months after the new server was up and in regular service. And I keep meticulous daily backups, and have been known to mail DVDs of their own data to those who ask for them, even for those who host on my servers for free.

But on a free service, people, you don't have "rights" to "demand" jack shit. If you don't like my terms for free hosting, then shuffle your cheap ass off to another host. Web hosting is one of those services where you get what you pay for. If you want guarantees and a formal policy, then you're going to give me some of those little American government generated pictures of dead presidents in return.

It never ceases to amaze me how people with no financial investment or payments at stake are so readily willing to tell equipment owners what to do. And because of them, I'm just as readily willing to tell freeloaders to kiss my web hosting ass.

What renters rights are in other cities/states

[nbauman]

In New York City, the tenants' rights are pretty strong. It's almost impossible for a landlord to evict a tenant who pays the rent, and it takes 6 months to evict a tenant who doesn't pay the rent. My landlord has to renew my yearly lease, at an increase regulated by law. After living here several years, I'm paying about half as much as the people who are now moving in paying what we call "market rent."

That's because (1) There are more tenants in New York City than landlords (2) We had a long tradition of socialist movements in New York City that taught people how to organize into tenants' organizations and demand that our City Council pass strong laws protecting tenants. The strongest, most aggressive organization was the Metropolitan Council on Housing, whose leader, Esther Rand, openly supported the Communist Party (Lenin never liked landlords). For all their faults, those Communists knew how to organize people.

Surprisingly (for those of you who believe in the free market) it works pretty well. The landlords are still getting rich (some of them very rich). There's lots of new housing being built. And a lot of people are able to live in New York City who could never have afforded to live here otherwise. There were some houses abandoned during the economic downturn of the 80s, but that seemed to affect both rent-controlled and uncontrolled housing equally, and it happened in cities without rent control too.

In contrast, Boston had a rent control law, but a few years ago they voted it out. The last I heard, the rents have gone up, it was much harder to get an apartment in Boston, there's no building boom in affordable housing, and from a tenant's POV they're worse off than they used to be. But I'd be interested in first-hand information.

I personally don't think rent control is the ideal solution. I think people who can't afford market-rate rents should be able to live in public housing projects (which also work better than you'd think), and landlords should be allowed to get as rich they want (provided they don't do it at my expense). But rent control was part of a grand bargain that the landlords in New York City struck with the tenants' organizations.

I think the lesson is that tenants can get a much better housing market, with more affordable rents, if they organize and pass laws that benefit them, than they would if they leave it to the free market. If you want to learn how to organize, do a Google search for an MP3 of Pete Seeger's song, "Talking Union." Or search for "Howard Zinn".

Re:What renters rights are in other cities/states

[digitig]

And yet, very similar rent control laws here in the UK give us a spread of very expensive rentals (where property prices are high anyway) to relatively cheap rentals (where property prices are low anyway). Which suggests that the difference isn't because of rent control laws. So the rental market in NYC is expensive? How about if I wanted to purchase a place in NYC? Would that be nice and cheap?

Re:What renters rights are in other cities/states

[ShooterNeo]

I remember the reason for this from economics class. Essentially, when you set a price ceiling on something that is above the equilibrium price for supply and demand, you have no effect on the market equilibrium.

      What rent control DOES do in this case is prevent speculation and rapidly ratcheting up rates. If the price ceiling is slightly above the LONG term equilibrium for rents, it prevents short term speculation and economic manipulation (such as a period of easy credit) from artificially inflating rents and creating a bubble.

How would you do this? Do competent asset analysis, factoring in the incomes and true value of a rental property. Come up with a reasonable 'formula' for a rent control ceiling based on this property value. Set the rent control rate to automatically INCREASE at 1% above the rate of inflation every year.

      Do this competently, and you have put a governor on the free market engine, not blocked it.

Re:What renters rights are in other cities/states

[rossz]

In Santa Monica, California (affectionately known as Soviet Monica) the rent control laws were so strict that landlords couldn't charge enough to break even. This resulted in a black market where you had to pay a huge bribe up front to get an apartment or rental house. Santa Monica was a favored place for well off young couples to live for about five years so they could save up a down payment for their own house.

This wasn't the worst of it. My mom's boss bought a small house in Santa Monica with the intention of living in it. It was pretty run down so needed a lot of work to make it livable. The rent control board decided that since the house had previously been rented, it would remain a rental unit even though no one had lived in it for several years! He had to hire lawyers and sue Santa Monica just for the right to live in his own hose. In the meantime, they wouldn't issue him the permits needed to repair the building.

I'm fairly certain they've changed the rental laws there by now, but I haven't lived in that area for over 10 years so I'm not positive.

Re:Yes, there should be

[LWATCDR]

Read the TOS please. It states that AOL can take it down at anytime and the users agreed to that.
How about people taking some reponsibilty for a change?
Make stinking backups.
Heck USB flash drives and DVDs are CHEAP. make copies people.

Please don't play lawyer

[unassimilatible]

Also, in contract law there is the notion of unconscionability, specifically that where one party to the contract is grossly more powerful than the other, the court can make decisions in favour of the less powerful party that would otherwise run afoul of contract law. True bargaining only occurs between equals, and the law has long recognized that.

There are actually two elements of unconscionability: Procedural and substantive. Procedural means that the process was unfair in some way; in this case, that the end user had no reasonable alternative but to sign a contract of adhesion. O rly? There aren't 100's of free Web hosts out there besides AOL? Not to mention the cheap-ass Web hosts out there. I have a great one with a free domain name for $7/month with phenomenal service that has backups in a different state! So I doubt there is procedural unconscionability.

As for substantive, were there grossly unfair - not just unfair, but so unfair as to "shock the conscience of the court" - or surprise terms in the contract? Or were AOL's TOS in line with what most free Web hosts offer? Substantive unconscionability is a very high burden to meet, and the vast majority of contracts of adhesion are upheld for this reason. Almost certainly this substantive element would fail as well.

It's this principle that is the source of the renter's protection laws that you despise so much.

No, the principle is that there are more renters than apartment owners, and therefore politicians pander to the tyranny of the majority (and those who feel sorry for them) while trampling on the property rights of the minority. Votes over principle. Just please don't call it "renters' rights." There are no such rights, only cynical politicians willing to rob from Peter to pay Paul; and the politician who does that will always have the support of Paul.

And lastly, if the cut-off of service wasn't mentioned at all in the TOS, the customers may have a remedy in tort for damages. The TOS would have to explicitly waive liability on cessation of service to exclude recovery in tort.

Dude, first off, stop trying to sound like a lawyer - it's like when a white guy tries to speak urban lingo - he just sounds lame. "A remedy in tort" - LOL.

Secondly, obviously the biggest ISP in the world has an indemnity clause in its TOS. More importantly, AOL is based in Virginia - a UCITA state - and its choice of forum and law clauses dictate all disputes are to be litigated there under VA law. So even without an indemnity clause, it's unlikely end users would win a lot of court cases in VA.

IAALBNYLATINLA (I Am A Lawyer But Not Your Lawyer And This Is Not Legal Advice). And I have taught business law for ten years, so I am not totally talking out of my arse.