Qwest has added a new clause in its ISP contract that threatens to charge customers $5 for every spam message sent by their computer - even if they are not aware of it.

The addition to a subscriber agreement [pdf] has been noticed and blown up on a Net discussion by consumer and small business users of its High Speed Internet service.

The contentious paragraph in Qwest's Acceptable Use Policy threatens to levy a $5 charge for every spam sent from a PC if this results in damages being awarded against Qwest itself. This is regardless of whether the owner of the PC was aware that their PC was sending spam, as would be the unfortunate case if it had been hijacked by a Trojan to act as a spam relay.

The main provision of the agreement forbids the sending of unsolicited e-mail, as is normal in such ISP agreements. However, it goes an important step further in its wording.

"You will pay Qwest’s actual damages in any way arising from, or related to, any spam transmitted by, or in any way connected to, you, to the extent that such damages can be calculated," the document states.

"If actual damages cannot be calculated reasonably, you agree to pay Qwest liquidated damages of five US dollars ($5.00) for each piece of spam transmitted from or otherwise connected with your account."

Users are believed to have been notified of the agreement in recent weeks, though they would need to delve into the 14-page agreement carefully to notice the addition.

"Qwest uses its best discretion when determining how it will enforce the specific terms of the acceptable use policy. We evaluate each instance on a case-by-case basis when violations are discovered, said a spokesperson for Qwest.

"In situations where a customer or another end-user are not deliberately or knowingly violating the policy, but instead are victims of an attack such as a worm or virus that causes the user to send spam unknowingly, we would not typically impose fines or other sanctions, but instead would work with the customer to solve the problem and prevent further issues," the statement concluded.

It is not clear from this whether the charge would be waived in every instance, or only those that did not result in any damages against Qwest itself, however.