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by Elinor Abreu

(IDG) -- Capitalizing on the controversy over a change in privacy policy at America Online (AOL), EarthLink, the second-biggest Internet service provider in the U.S., is offering a free month of service - and a donation to an electronic privacy advocacy group - to customers who dump AOL and move to EarthLink.

AOL recently changed its terms of service agreement to require subscribers who have already said they don't want AOL to share any of their personal information with marketers to again decline. Subscribers will now have to repeat that thumbs-down every year.

The move so outraged San Jose Mercury News technology columnist Dan Gillmor that he wrote about it in a Nov. 30 column and canceled his AOL account. "The world's biggest online service is just plain arrogant," he wrote.

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The problem is not just that AOL's subscriber "opt-out" choice now expires, but that many users may not have received the notice about the change because of software filters or user oversight. In addition, subscribers who did see it weren't allowed to reply to the e-mail to ask questions or express concerns.

AOL declined to return repeated phone calls seeking comment.

The Electronic Privacy Information Center, which will get a $50 donation from EarthLink for every AOL customer who deserts, has received several complaints about AOL's policy change, according to EPIC's Executive Director Marc Rotenberg. "We have been critical of AOL's decision to expire the privacy preferences," he said. Not only does setting the default to opt users in to the marketing not benefit them, but it's unfair and burdensome to force them to reset their privacy preference each year, he added.

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Rotenberg couldn't say whether EPIC had any criticisms of EarthLink's policies because officials haven't looked at them. EPIC's acceptance of the donation does not mean that the group endorses EarthLink or its practices, he added.

"God bless them," Jason Catlett, president of privacy advocacy group Junkbusters, said when told of the donation. "Obviously EarthLink is trying to present itself as a kinder, gentler, more private ISP, and that's great," he said.

But apparently it's not just public relations with EarthLink. The ISP was one of the first to offer its subscribers spam filtering, and it brought one of the first lawsuits against spam factory CyberPromotions, which ended in a settlement, according to Catlett.

Meanwhile, EarthLink is staking out the high ground, pointing out that it will not share subscribers' information with third parties for commercial purposes, except when required by law.

As part of its migration program, EarthLink is offering software that helps users transition their address books to EarthLink, change-of-address notifications and an "AOL Graduates" guide. The booklet shows users they can do the same things on EarthLink that they could in AOL's proprietary environment, said Kirsten Kappos, VP of corporate communications.

EarthLink, which announced plans in September to merge with MindSpring and become the No. 2 Internet service provider in the U.S., is going on the offense to try to compete with No. 1 AOL. At the time of the merger announcement, EarthLink executives acknowledged they would face an uphill battle, given AOL's 17 million subscribers and EarthLink's combined 3 million.

Before AOL's latest controversial policy change, about a million AOL subscribers were abandoning the service in favor of EarthLink, said Kappos. "We get about 30 percent of our customers from AOL. We'll probably get even more now."

This isn't the first migration offer EarthLink has made. In February 1998, the day AOL raised its monthly price from $19.95 to $21.95, EarthLink announced a free month of service to cost-conscious AOL customers. EarthLink's service is still $19.95.

The latest offer comes as EarthLink is announcing a new version of its service. EarthLink 5.0 enables users to connect automatically to the Internet when they click on the EarthLink icon.

In the meantime, the ISP plans to spend $300 million on marketing when its merger with MindSpring is complete early next year. In the meantime, the ISP is getting a headstart. "We're having fun with this," said Kappos.