Legal Commentary

Something to Watch Out for If You?re Using Rackspace

By Eugene Volokh

The San Antonio News-Express Web site reports,

Rackspace Hosting Inc. hosted the Florida church?s website, but stopped providing services late Wednesday after determining the Dove World Outreach Center violated a provision in its contract regarding hate speech, a Rackspace spokesman said.

The company received complaints that the center violated the acceptable use policy, which is available on the Rackspace website, Rackspace spokesman Dan Goodgame said.

Goodgame would not say what material violated the policy .... Rackspace gave [the church] time to move its content off the servers and then stopped hosting the site....

The Dove World Outreach Center?s website and another site promoting a book by church pastor Terry Jones were not working Thursday afternoon. ...

Rackspace is of course entirely free to stop doing business with the Dove World Outreach Center; and even if its acceptable use policy simply said that it is terminable by either party at will, and said nothing about ?hate speech,? it would have the right to do so. Indeed, in practice a provision such as the one in the policy ? ?You may not use the Mail Services to distribute content or links to content that Rackspace reasonably believes ... is excessively violent, incites violence, threatens violence or contains harassing content or hate speech? ? is mostly a warning to clients, rather than a legally enforceable provision. I doubt Rackspace would ever sue for a violation of this, and in any case it?s not clear to me that such vague terms would be legally enforceable. Rackspace is just alerting its clients to what will likely lead it to terminate the contract; it?s often sensible to do that when making a deal.

Nonetheless, it seems to me that clients or prospective clients of Rackspace who want to post controversial material ? including material critical of Islam, or other religions ? might want to consider avoiding service providers that have shown themselves willing to terminate contracts under these circumstances. Shifting providers, even with a bit of time given to move, is often pretty disruptive and time-consuming. It?s better to stick with a provider that is more reluctant to make you move.

Perhaps other providers would have reacted the same way as Rackspace did. As I mentioned above, they likely would have the legal right to do so. But all we can go on in estimating this likelihood is the company?s visible track record, coupled with the warning in their policy (which is not entirely boilerplate, since some providers do not specifically mention ?hate speech? and the like as forbidden uses). Given this, I?d be hesitant to select Rackspace as my host, especially given my willingness to post things that many might find offensive.

Full post as published by The Volokh Conspiracy on September 15, 2010 (boomark / email).