Monthly Archives: January 2021

Are B2B cloud service agreements safe?

I’m seeing various bits of angst around “Is it safe to use cloud services, if my business can be suspended or terminated at any time?” and I thought I’d take some time to explain how cloud providers (and other Internet ecosystem providers, collectively “service providers” [SPs] in this blog post) enforce their Terms of Service (ToS) and Acceptable Use Policies (AUPs).

The TL;DR: Service providers like money, and will strive to avoid terminating customers over policy violations. However, providers do routinely (and sometimes automatically) enforce these policies, although they vary in how much grace and assistance they offer with issues. You don’t have to be a “bad guy” to occasionally run afoul of the policies. But if your business is permanently unwilling or unable to comply with a particular provider’s policies, you cannot use that provider.

AUP enforcement actions are rarely publicized. The information in this post is drawn from personal experience running an ISP abuse department; 20 years of reviewing multiple ISP, hosting, CDN, and cloud IaaS contracts on a daily basis; many years of dialogue with Gartner clients about their experiences with these policies; and conversations with service providers about these topics. Note that I am not a lawyer, and this post is not legal advice. I would encourage you to work with your corporate counsel to understand service provider contract language and its implications for your business, whenever you contract for any form of digital service, whether cloud or noncloud.

The information in this post is intended to be factual; it is not advice and there is a minimum of opinion. Gartner clients interested in understanding how to negotiate terms of service with cloud providers are encouraged to consult our advice for negotiating with Amazon Web Services (AWS), Microsoft Azure, and Google Cloud Platform (GCP), or with SaaS providers. My colleagues will cheerfully review your contracts and provide tailored advice in the context of client inquiry.

Click-thrus, negotiated contracts, ToS, and AUPs

Business-to-business (B2B) service provider agreements have taken two different forms for more than 20 years. There are “click-through agreements” (CTAs) that present you with a online contract that you click to sign; consequently, they are as-is, “take it or leave it” legal documents that tend to favor the provider in terms of business risk mitigation. Then there are negotiated contracts — “enterprise agreements” (EAs) that typically begin with more generous terms and conditions (T&Cs) that better balance the interests of the customer and the provider. EAs are typically negotiated between the provider’s lawyers and the customer’s procurement (sourcing & vendor management) team, as well as the customer’s lawyers (“counsel”).

Some service providers operate exclusively on either CTAs or EAs. But most cloud providers offer both. Not all customers may be eligible to sign an EA; that’s a business decision. Providers may set a minimum account size, minimum spend, minimum creditworthiness, etc., and these thresholds may be different in different countries. Providers are under no obligation to either publicize the circumstances under which an EA is offered, or to offer an EA to a particular customer (or prospective customer).

While in general, EAs would logically be negotiated by all customers who can qualify, providers do not necessarily proactively offer EAs. Furthermore, some companies — especially startups without cloud-knowledgeable sourcing managers — aren’t aware of the existence of EAs and therefore don’t pursue them. And many businesses that are new to cloud services don’t initially negotiate an EA, or take months to do that negotiation, operating on a CTA in the meantime. Therefore, there are certainly businesses that spend a lot of money with a provider, yet only have a CTA.

Terms of service are typically baked directly into both CTAs and EAs — they are one element of the T&Cs. As a result, a business on an EA benefits both from the greater “default” generosity of the EA’s T&Cs over the provider’s CTA (if the provider offers both), as well as whatever clauses they’ve been able to negotiate in their favor. In general, the bigger the deal, the more leverage the customer has to negotiate favorable T&Cs, which may include greater “cure time” for contract breaches, greater time to pay the bill, more notice of service changes, etc.

AUPs, on the other hand, are separate documents incorporated by reference into the T&Cs. They are usually a superset or expansion/clarification of the things mentioned directly in the ToS. For instance, the ToS may say “no illegal activity allowed”, and the AUP will give examples of prohibited activities (important since what is legal varies by country). AUPs routinely restrict valid use, even if such use is entirely legal. Service providers usually stipulate that an AUP can change with no notice (which essentially allows a provider to respond rapidly to a change in the regulatory or threat environment).

Unlike the EA T&Cs, an AUP is non-negotiable. However, an EA can be negotiated to clarify an AUP interpretation, especially if the customer is in a “grey area” that might be covered by the AUP even if the use is totally legitimate (i.e. a security vendor that performs penetration testing on other businesses at their request, may nevertheless ask for an explicit EA statement that such testing doesn’t violate the AUP).

Prospective customers of a service provider can’t safely make assumptions about the AUP intent. For example, some providers might not exclude even a fully white-hat pen-testing security vendor from the relevant portion of the AUP. Some providers with a gambling-excluding AUP may not choose to do business with an organization that has, for instance, anything to do with gambling, even if that gambling is not online (which can get into grey areas like, “Is running a state lottery a form of gambling?”). Some providers operating data centers in countries without full freedom of the press may be obliged to enforce restrictions on what content a media company can host in those regions. Anyone who could conceivably violate the AUP as part of the routine course of business would therefore want to gain clarity on interpretation up front — and get it in writing in an EA.

What does AUP enforcement look like?

If you’re not familiar with AUPs or why they exist and must be enforced, I encourage you to read my post “Terms of Service: from anti-spam to content takedown” first.

AUP enforcement is generally handled by a “fraud and abuse” department within a service provider, although in recent years, some service providers have adopted friendlier names, like “trust and safety”. When an enforcement action is taken, the customer is typically given a clear statement of what the violation is, any actions taken (or that will be taken within X amount of time if the violation isn’t fixed), and how to contact the provider regarding this issue. There is normally no ambiguity, although less technically-savvy customers can sometimes have difficulties understanding why what they did wrong — and in the case of automatic enforcement actions, the customer may be entirely puzzled by what they did to trigger this.

There is almost always a split in the way that enforcement is handled for customers on a CTA, vs customers on an EA. Because customers on a CTA undergo zero or minimal verification, there is no presumption that those customers are legit good actors. Indeed, some providers may assume, until proven otherwise, that such customers exist specifically to perpetuate fraud and/or abuse. Customers on an EA have effectively gone through more vetting — the account team has probably done the homework to figure out likely revenue opportunity, business model and drivers for the sale, etc. — and they also have better T&Cs, so they get the benefit of the doubt.

Consequently, CTA customers are often subject to more stringent policies and much harsher, immediate enforcement of those policies. Immediate suspension or termination is certainly possible, with relatively minimal communication. (To take a public GCP example: GCP would terminate without means to protest as recently as 2018, though that has changed. Its suspension guidelines and CTA restrictions offer clear statements of swift and significantly automated enforcement, including prevention of cryptocurrency mining for CTA customers who aren’t on invoicing, even though it’s perfectly legal.) The watchword for the cloud providers is “business risk management” when it comes to CTA customers.

Customers that are on a CTA but are spending a lot of money — and seem to be legit businesses with an established history on the platform — generally get a little more latitude in enforcement. (And if enforcement is automated, there may be a sliding threshold for automated actions based on spend history.) Similarly, customers on a CTA but who are actively negotiating an EA or engaged in the enterprise sales process may get more latitude.

Often-contrary to the handling of CTA customers, providers usually assume an EA customer who has breached the AUP has done so unintentionally. (For instance, one of the customer’s salespeople may have sent spam, or a customer VM may have been compromised and is now being used as part of a botnet.) Consequently, the provider tends to believe that what the customer needs is notification that something is wrong, education on why it’s problematic, and help in addressing the issue. EA customers are often completely spared from any automated form of policy enforcement. While business risk management is still a factor for the service provider, this is often couched politely as helping the customer avoid risk exposure for the customer’s own business.

Providers do, however, generally firmly hold the line on “the customer needs to deal with the problem”. For instance, I’ve encountered cloud customers who have said to me, “Well, my security breach isn’t so bad, and I don’t have time/resources to address this compromised VM, so I’d like more than 30 days grace to do so, how do I make my provider agree?” when the service provider has reasonably taken the stance that the breach potentially endangers others, and mandated that the customer promptly (immediately) address the breach. In many cases, the provider will offer technical assistance if necessary. Service providers vary in their response to this sort of recalcitrance and the extent of their enforcement actions. For instance, AWS normally takes actions against the narrowest feasible scope — i.e. against only the infrastructure involved in the policy violation. Broadly, cloud providers don’t punish customers for violations, but customers must do something about such violations.

Some providers have some form of variant of a “three strikes” policy, or escalating enforcement. For instance, if a customer has repeated issues — for example, it seems unable implement effective anti-spam compliance for itself, or it constantly fails to maintain effective security in a way that could impact other customers or the cloud provider’s services, or it can’t effectively moderate content it offers to the public, or it can’t prevent its employees from distributing illegally copied music using corporate cloud resources — then repeated warnings and limited enforcement actions can turn into suspensions or termination. Thus, even EA customers are essentially obliged treat every policy violation as something that they need to strive to ensure will not recur in the future. Resolution of a given violation is not evidence that the customer is in effective compliance with the agreement.

Bottom Line

It’s not unusual for entirely legitimate, well-intentioned businesses to breach the ToS or AUP, but this is normally rare; a business might do this once or twice over the course of many years. New cloud customers on a CTA may also innocently exhibit behaviors that trigger automated enforcement actions that use algorithms to look for usage patterns that may be indicative of fraud or abuse. Service providers will take enforcement actions based on the customer history, the contractual agreement, and other business-risk and customer-relationship factors.

Intent matters. Accidental breaches are likely to be treated with a great deal more kindness. If breaches recur, though, the provider is likely to want to see evidence that the business has an effective plan for preventing further such issues. Even if the customer is willing to absorb the technical, legal, or business risks associated with a violation, the service provider is likely to insist that the issue be addressed — to protect their own services, their own customers, and for the customer’s own good.

Terms of Service: From anti-spam to content takedown

Many consumers are familiar with the terms of service (ToS) that govern their use of consumer platforms that contain user-generated content (UGC), such as Facebook, Twitter, and YouTube. But many people are less familiar with the terms of service and acceptable use policy (AUP) that governs the relationships between businesses and their service providers.

In light of the recent decision undertaken by Amazon Web Services (AWS) to suspend service to Parler, a Twitter-like social network that was used to plan the January 6th insurrection at the US Capitol, there have been numerous falsehoods circulating on social media that seem related to a lack of understanding of service provider behavior, ToS and AUPs: claims of “free speech” violations, a coordinated conspiracy between big tech companies, and the like. This post is intended to examine, without judgment, how service providers — cloud, hosting and colo, CDN and other Internet infrastructure providers, and the ISPs that connect everyone to the Internet — came to a place of industry “standards” for behavior, and how enforcement is handled in B2B situations.

The TL;DR summary: The global service provider community, as a result of anti-spam efforts dating back to the mid-90s, enforces extremely similar policies governing content, including user-generated content, through a combination of B2B peer pressure and contractual obligations. Business customers who contravene these norms have very few options.

These norms will  greatly limit  Parler’s options for a new home. Many sites with far-right and similarly controversial content have ultimately ended up using a provider in a supply chain that relies on Russian connectivity, thus dodging the Internet norms that prevail in the rest of the world.

Internet Architecture and Service Provider Dependencies

While the Internet is a collection of loosely federated networks that are in theory independent from one another, it is also an interdependent web of interconnections between those networks. There are two ways that ISPs connect with one another — through “settlement-free peering” (essentially an exchange of traffic between two ISPs that view themselves as equals) and through the purchase of “transit” (making a “downstream ISP” the customer of an “upstream ISP”).

This results in a three-tier model for ISPs.  The Tier 1 ISPs are big global carriers of network connectivity — companies like AT&T, BT and NTT — who have settlement-free peers with each other,  and sell transit to smaller ISPs. Tier 2 ISPs are usually regional, and have settlement-free peers with others in and around their region, but also are reliant on transit from the Tier 1s. Tier 3 ISPs are entirely dependent on purchasing transit. ISPs at all three tiers also sell connectivity directly to businesses and/or consumers.

In practice, this means that ISPs are generally contractually bound to other ISPs. All transit contracts are governed by terms of service that normally incorporate, by reference, an AUP.  Even settlement-free peering agreements are legal contracts, which normally includes the mutual agreement to maintain and enforce some form of AUP. (In the earlier days of the Internet, peering was done on a handshake, but anything of that sort is basically a legacy that can come to an abrupt end should one party suddenly decide to behave badly.)

AUP documents are interesting because they are deliberately created as living documents, allowing AUPs to be adapted to changing circumstances — unlike standard contract terms, which apply for the length of what is usually a multiyear contract. AUPs are also normally ironclad; it’s usually difficult to impossible for a business to get any form of AUP exemption written into their contract. Most contracts provide minimal or no notice for AUP changes. Businesses tend to simply agree to them because most businesses do not plan to engage in the kind of behavior that violates an AUP — and because they don’t have much choice.

The existence of ISP tiering means that upstream providers have significant influence over the behavior of their downstream. Upstream ISPs normally mandate that their downstream ISPs — and other service providers that use their connectivity, like hosting providers — enforce an AUP that enables the downstream provider to be compliant with the upstream’s terms of service. Downstream providers that fail to do so can have their connectivity temporary suspended or their contract terminated. And between the Tier 1 providers, peer pressure ensures a common global understanding and enforcement of  acceptable behavior on the Internet.

Note that this has all occurred in the absence of regulation. ISPs have come to these arrangements through decisions about what’s good for their individual businesses first and foremost, with the general agreement that these community standards for AUPs are good for the community of network operators as a whole.

We’re Here Because Nobody Likes Spammers

So how did we arrive at this state in the first place?

In the mid-90s, as the Internet was growing rapidly, in the near-total absence of regulation, spam was a growing problem. Spam came from both legitimate businesses who simply weren’t aware of or didn’t especially care about Internet etiquette, as well as commercial spammers (bad actors with deceptive or fraudulent ads, and/or illegal/grey-market products).

Many B2B ISPs did not feel that it was necessarily their responsibility to intervene, despite general distaste for spammers — and, sometimes, a flood of consumer complaints. Some percentage of spammers were otherwise “good customers” — i.e. they paid their bills on time and bought a lot of bandwidth. Many more, however, obtained services under fraudulent pretenses, didn’t pay their bills, or tended not to pay on time.

Gradually, the community of network operators came to a common understanding that spammers were generally bad for business, whether they were your own customers, or whether they were the customers of, say, a web hosting company that you provided Internet connectivity for.

This resulted in upstream ISPs exerting pressure on downstream ISPs. Downstream ISPs, in turn, exerted pressure on their customers — kicking spammers off their networks and pushing hosters to kick spammers out of hosting environments. ISPs formalized AUPs. AUP enforcement took longer. Many ISPs were initially pretty shoddy and inconsistent in their enforcement — either because they needed the revenue they were getting from spammers, or due to unwillingness or inability to fund a staff to deal with abuse, or corporate lawyers who urged caution. It took years, but ISPs eventually arrived at AUPs that were contractually enforceable, processes for handling complaints, and relatively consistent enforcement. Legislation like the CAN-SPAM act in the US didn’t hurt, but by the time CAN-SPAM was passed (in 2003), ISPs had already arrived at a fairly successful commercial resolution to the problem.

Because anti-spam efforts were largely fueled by agreements enshrined in B2B contracts, and not in government regulation, there was never full consistency across the industry. Different ISPs created different AUPs — some stricter and some looser. Different ISPs wrote different terms of service into their contracts, with different “cure” periods (a period of time that a party in the contract is given to come into compliance with a contractual requirement). Different ISPs had different attitudes towards balancing “customer service” versus their responsibilities to their upstream providers and to the broader community of network operators.

Consequently, there’s nothing that says “We need to receive X number of spam complaints before we take action,” for instance. Some providers may have internal process standards for this. A lot of enforcement simply takes place via automated algorithms; i.e. if a certain threshold of users reports something as spam, enforcement actions take place. Providers effectively establish, through peer norms, what constitutes “effective” enforcement in accordance with terms of service obligations. Providers don’t need to threaten each other with network disconnection, because a norm has been established. But the implicit threat — and the contractual teeth behind that threat — always remains.

Nobody really likes terminating customers. So there are often fairly long cure periods, recognizing that it can take a while for a customer to properly comply with an AUP. In the suspension letter that AWS sent Parler, AWS cites communications “over the past several weeks”. Usually the providers look for their customers to demonstrate good-faith efforts, but may take suspension or termination efforts if it does not look like a good-faith effort to comply is being made, or if it appears that the effort, no matter how seemingly earnest, does not seem likely to bring compliance within a reasonable time period. 30 days is a common timeframe specified as a cure period in contracts (and is the cure period in the AWS standard Enterprise Agreement), but cloud provider click-through agreements (such as the AWS Customer Agreement) do not normally have a cure period, allowing immediate action to be taken at the provider’s discretion.

What Does This Have to Do With Policing Users on Social Media?

When providers established anti-spam AUPs, they also added a whole laundry list of offenses beyond spamming. Think of that list, “Everything a good corporate lawyer thought an ISP might ever want to terminate a customer for doing.” Illegal behavior, harassment, behavior that disrupts provider operations, behavior that threatens the safety/security/operations of other businesses, etc. are all prohibited.

Hosting companies — eventually followed by cloud providers like AWS, Microsoft Azure, and Google Cloud Platform, as well as companies that hold key roles in the Internet ecosystem (domain registrars and the companies that operate the DNS; content delivery networks like Akamai and Cloudflare, etc.) — were essentially obliged to incorporate their upstream ISP usage policies into their own terms of service and AUPs, and to enforce those policies on their users if they wanted to stay connected to the Internet. Some such providers have also explicitly chosen not to sell to customers in certain business segments — for instance, no gambling, or no pornography, even if the business is fully legitimate and legal (for instance, like MGM Resorts or Playboy) — through limiting what’s allowed in their terms of service. An AUP may restrict activities that are perfectly legal in a given jurisdiction.

Even extremely large tech companies that have their own data centers, like Facebook and Apple, are ultimately beholden to ISPs. (Google is something of an odd case because in addition to owning their own data centers, they are one of the largest global network operators. Google owns extensive fiber routes and peers with Tier 1 ISPs as an equal.) And even though AWS has, to some degree, a network of its own, it is effectively a Tier 2 ISP, making it beholden to the AUPs of its upstream. Other cloud providers are typically mostly or fully transit-dependent, and are thus entirely beholden to their upstream.

In short: Everyone who hosts content companies, and the content companies themselves, is essentially trapped, by the chain of AUP obligations, to policing content to ensure that it is not illegal, harassing, or otherwise seen as commercially problematic.

You have to go outside the normal Internet supply chain — for instance, to the Russian service providers — before you escape the commercial arrangements that bound notions of good business behavior on the Internet. It doesn’t matter what a provider’s philosophical alignment is. Commercially, they simply can’t really push back on the established order. And because these agreements are global, regulation at a single-country level can’t really force these agreements to be significantly more or less restrictive, because of the globalized nature of peering/transit; providers generally interconnect in multiple countries.

It also means that these aren’t just “Silicon Valley” standards. These are global norms for behavior, which means they are not influenced solely by the relatively laissez-faire content standards of the United States, but by the more stringent European and APAC environments.

It’s an interesting result of what happens when businesses police themselves. Even without formal industry-association “rules” or regulatory obligations, a fairly ironclad order can emerge that exerts extremely effective downstream pressure (as we saw in the cases of 8Chan and the Daily Stormer back in 2019).

Does being multicloud help with terms of service violations?

Some people will undoubtedly ask, “Would it have helped Parler to have been multicloud?” Parler has already said that they are merely bare-metal customers of AWS, reducing technical dependencies / improving portability. But their situation is such that they would almost certainly have had the exact same issue if they had been running on Microsoft Azure, Google Cloud Platform, or even Oracle Cloud Infrastructure as well (even though the three companies have top executives with political views spanning the spectrum). A multicloud strategy won’t help any business that violates AUP norms.

AWS and its cloud/hosting competitors are usually pretty generous when working with business customers that unintentionally violate their AUPs. But a business that chooses not to comply is unlikely to find itself welcome anywhere, which makes multicloud deployment largely useless as a defensive strategy.

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