Previous Politech message: "Toronto woman sues over her stored email, wants $110,000" http://www.politechbot.com/p-04114.html I thank Nancy for replying. Yet I think we may be talking at cross purposes. I don't know whether or not her ISP's actions violated Canadian law. If Nancy's right, she'll get her $110K -- but set a bad precedent for everyone else. What I'm saying is that as a general rule, a relationship between an ISP and a customer should be governed by the contract. There's no need for a Federal Department of Internet Provider Regulation. That Canada seems to be creating one is Canada's problem. -Declan --- From: "Nancy Carter" <nancarat_private> To: <declanat_private> Subject: ISPs need to act responsibly Date: Sun, 3 Nov 2002 10:39:36 -0500 A friend pointed me toward your website and the posting on my case. Some thoughts on points you raise: "Seems to me this is, or at least should be, a straightforward contractual dispute" Setting aside the fact that the Federal Privacy Commissioner determined that this practice, as it was implemented by this company, was in violation of Canada's privacy law: If the ISP industry wants to take the position that email is personal property then they are saying they have the ability to declare an interest in that piece of property, and to actually hang on to it. As a business you might do this when you have a billing dispute with a consumer. However, these liens tend to be circumscribed in legislative structures: the business that is exercising the lien has a responsibility to take good care of goods in the meantime to ensure that they aren’t damaged, that they don’t depreciate in value. Problem is, this is about is person-to-person communication. It is in the nature of a communication that you can’t put it ‘on the shelf’ without depreciating its value. As is the legal requirement for a car mechanic's lien, the they hang on to your car but keeps it well stored during that time, the loss in value to your car is negligible. When you do get your car back, you may have been deprived by not having use of it, but you do get the value that was stored. Communications are a very different beast: what is the value of an invitation to contact a producer about a job? Communication is very time-sensitive in its value, whether it’s a bill, or a notice that your favourite store has a sale on, or an invitation to a party. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /> Moreover, the value of a communication lies, not in themselves so much, but in the actions that arise from them. It’s like a five cent bolt that in itself is just worth a nickel, but if it’s being couriered somewhere because you need to put it into the plane before the plane can fly, the actual consequences of it not arriving are much more than five cents. Communications would, much more often than goods, likely fall into the case where the value at stake to the parties goes beyond the apparent value of what someone is actually holding onto. What is the value of a piece of email vs. what is the value that might flow to the sender or the recipient? In a billing dispute, the sender of the bill is relying on the fact that you got the bill in their ability to say that ‘well, you haven’t paid me on time’. Or what is the value of an email with a job offer or a response from your publisher about whether or not they’re interested in that article you sent them. This is why I don't think the rules around property apply. They may be useful to look at how repairers and storers and others are required to carry on their activities when they try to assert these sorts of liens. I’m not sure how useful it is to look at this sort of model because what you come back to is the question of is it even proper to treat a communication under this kind of model? It might be that for some private parties’ purposes it might be advantageous to argue ‘it’s personal property and I want it treated under the law of personal property’. On the other hand, it might be advantageous to say ‘no, to simply treat it as personal property and apply those rules is not appropriate because a communication has unique characteristics that are different from apples and cars. Although, perhaps, more similar to apples in the sense they are perishable. Conceptually, what the ISPs want to do is similar to a ‘carrier’s lien’: a trucking company says ‘you haven’t paid me for what I’m shipping’. But because the trucking company has an obligation to not have the goods depreciate in value while they’re holding on to it, you have a problem doing this with communication. The time has come for these and other interpretive arguments to be addressed by the courts. From a business perspective, we are seeing legislation passed across Canada that advances the use of email further. One example is the business community wanting to push the adoption of electronic billing. They wish to be able to rely upon the fact that ‘you’re now 30 days past due on your last bill’ and that infrastructure requires that the business community be able to rely that courts will accept that when you have emailed things to people they have been received. It’s pretty ironic that it would be a consumer that was getting behind in their bills who would be the consumer who was having their email account suspended. On the Uniform Law Conference of Canada’s website, the Uniform Liens Act, there is a well accepted doctrine that there are services that you provide in respect of goods that add value to the goods - and in this way become part of the good. Like: repairing a good, storing it, and transporting it all fall into this category. That’s why it may be reasonable in those instances for this kind of business to use possession of the good to try to enforce payment. Generally speaking, if you have a dispute with a business and they want payment from you, then off to collection practices in court they go. Ordinarily they can’t just hold on to your property. What makes it special in certain cases is that a business can hold on to your property it’s because they provided a service that you requested with respect to that specific piece of property and the service is now bound up in the value of that property. What's interesting is that all of these regimes for goods that recognize liens of this sort is that the liens are not created by contracts; the liens are created by statutory regimes. The liens and the statutory regimes include dispute settlement processes. One of the problems that can arise in the area of goods that is addressed is that if you have a dispute with your repairer about a $500.00 car repair bill, however, your car is worth $12,000.00, so the repairer hangs on to your $12,000 car in your dispute over $500. This means you’re subjected to $12,000 worth of pressure in the dispute over $500. The safety valve that legislative regimes offer for liens in this case is called ‘payment into court’. You pay $500 into court, so the issue is no longer that you are not willing to pay the bill, the issue is reduced to the $500, not the $12,000. You pay $500, you get your car back, you and your repairer continue to argue but now it’s clear your arguing about the $500, and you’re not without your car, and you’re not just stuck dealing with the repairer, there’s a process for getting to a third party and to narrow the dispute to the actual value that’s being disputed. As a general model, the Australian Telecom Industry Ombudsman model (that, in a dispute, the customer pays the disputed amount to the TIO to get their email back then argues the dispute through that office) still doesn’t address the issue of whether you think, as a communication, email should be subject to this kind of practice at all. This model of how goods are handled is a very widespread and longstanding model of how you resolve disputes of this sort about goods. This is why there is Uniform Legislation in Canada outlining how it should be done. I’m always wary in the internet realm of overworking analogies to the material world because people always want to say ‘well, its just like this’, and the truth is it’s never just like that. Every analogy falls down somewhere. But at the higher level of principal, the model that’s evolved for disputes around goods is put in place to protect both parties. I can see the ISPs position that, like a carrier of goods, they have provided value that’s intrinsically bound up in the email in transporting it from A to B. There's a certain logic there. But if you follow that logic through to the end of the road, you get both to the issue of should you be left arguing a bill that may be worth less in value than the value of the email, and its consequences without resort to a third party? And the other issue is, if generally in these situations it’s the responsibility of the party that’s holding on to something to ensure that it didn’t degrade in value, can you meet that responsibility with respect to a communication? If you can’t, then the whole application of this model starts to fall down. Throughout common law courts there is a willingness to look into the propriety and conscionability of terms that are in contracts of adhesion. They’re more willing to look at the question of ‘is that just a fundamentally unfair term?’ By contrast, if the two parties actually were dickering back and forth and the contract were written by the two of them together, the court would be less willing to look into the terms of the contract. With the way email has entered our lives we need to think more about this issue and what is really going on here and what are the right principals to apply to it. "If you want your ISP to handle email in a special way, shop around. If there's sufficient demand, ISPs will offer different options. " In my situation the critical information about account suspension, that the email address would stand open without my having access to it, wasn't disclosed in any way to customers of Inter.net Canada Ltd (and wasn't available to them until after I filed my complaint with the Priv Com). If you don't know it's happening, you can't ask the questions. My understanding through the limited amount of direct research I could do, and from the Canadian Association of Internet Providers (CAIP), was that this was standard practice in the industry. When I called ISP's to ask about the policy and practice with regard to this issue, it was extremely difficult to get a clear answer - sometimes reps seemed to genuinely not know about their policy in this. I had to escalate my question up through several layers of sales and customer service. In a number of cases, I had to go to the regulatory law department and speak to their lawyers. The only ISP that has recently discontinued this policy appears to be Sympatico. I also understand that you can access your rogers@home email account from a remote computer if they cut you off. In the weeks after it happened, I also received an email response from the Chairman of the Board of Directors of CAIP stating that his own ISP company did this, though they would give the email back if the customer asked for it. He describes it as a way to 'nudge' the customer for payment. During my days and weeks of researching this policy I was told the following by a VP of Marketing at a large ISP: 'Nancy, you have to understand the business perspective in this situation. When an account goes into arrears we want two things: 1) to collect our overdue money, and 2) to keep the customer who has great value to us. If we shut down their account and bounced all their email, what is the incentive on the customer to pay us? They won't, they'll simply not pay their bill and go down the street to the next ISP for their service.' So, unless you spent hours and days trying to get answers to questions that only lawyers at the ISPs could answer, you didn't have much of an option for taking your business elsewhere. 'I suspect this is hardly unprecedented or raises novel issues. I'd wager that some commercial voicemail or mail-receiving services take a similar pay-overdue-bills-to-gain-access approach.' I'm not familiar with commercial voicemail services (I didn't know you could get this). My voicemail is part of the service I get from my telco and so falls under the protection of the Telecommunications Act which prohibits interfering with communication. I contacted Mailboxes Etc. and asked them what they do with collected mail and they said, though they weren't bound by law, in the interest of best practice, they returned all mail to senders after a period of time. Who knows if every franchise is diligent at this. I would say that email has entered and is now part of our lives in a different way. The number of people who use email as compared to people who use a mailbox service is very different. My understanding is that there are some 10 billion person-to-person emails sent every day worldwide. I think it's time for the law to catch up with this reality and to determine the legal status of email in Canada. By the way, this industry argues hard in Canada for 'self regulation': that market forces make everyone behave so rules aren't necessary. How is this possible when Inter.net Canada Ltd. hires a lawyer, Karl Delwaide, from the second largest lawfirm in Canada, Fasken Martineau Dumoulin, to send me an email letter threatening to sue me for damages because I talked to CAIP, Industry Canada, the federal Department of Justice, the federal Privacy Commissioner and the media about what they are doing. My understanding is that these are called SLAPPs, Strategic Lawsuits Against Public Participation. Fifteen US states have anti-SLAPP legislation because these tactics are seen as an abuse of the law and an abuse of the courts. I'm attaching this letter from them also because it captures the problems inherent in this issue: the letter was sent to me via email and the firm's own disclaimer on the message states: ...'the use of e-mail is considered by the firm as an adequate means of communication, equivalent to regular mail'. Return-Path: <NHolmesat_private> Received: from mailmtl2.fasken.com ([206.162.171.194]) by tomts16-srv.bellnexxia.net (InterMail vM.4.01.03.16 201-229-121-116-20010115) with ESMTP id <20020206203307.QIBU12914.tomts16-srv.bellnexxia.netat_private> for <nancarat_private>; Wed, 6 Feb 2002 15:33:07 -0500 Received: from mail pickup service by mailmtl2.fasken.com with Microsoft SMTPSVC; Wed, 6 Feb 2002 15:28:10 -0500 Content-Type: multipart/mixed; boundary="----=_NextPart_000_01F8_01C1BB92.A7E53400" X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2600.0000 Received: from internet.martineau-walker.com ([206.162.171.232]) by mailmtl2.fasken.com with Microsoft SMTPSVC(5.0.2195.2966); Wed, 6 Feb 2002 15:28:07 -0500 Received: from notes2.martineau-walker.com ([172.20.100.44]) by internet.martineau-walker.com (Lotus Domino Release 5.0.8) with ESMTP id 2002020615542418:5434 ; Wed, 6 Feb 2002 15:54:24 -0500 To: <nancarat_private> Cc: <KDelwaideat_private> Subject: Inter.net Canada X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 X-Priority: 3 X-MSMail-Priority: Normal Message-ID: <OF270A6BCF.11A37E70-ON85256B58.006F88B4@martineau-walker.com> From: <NHolmesat_private> Date: Wed, 6 Feb 2002 15:25:56 -0500 MIME-Version: 1.0 X-MIMETrack: Serialize by Router on Notes2/M-W(Release 5.0.8 |June 18, 2001) at 02/06/2002 03:25:58 PM,Itemize by SMTP Server on SMTP_MTL/M-W(Release 5.0.8 |June 18, 2001) at 02/06/2002 03:54:24 PM,Serialize by Router on SMTP_MTL/M-W(Release 5.0.8 |June 18, 2001) at 02/06/2002 03:54:28 PM Return-Path: <NHolmesat_private> X-OriginalArrivalTime: 06 Feb 2002 20:28:08.0120 (UTC) FILETIME=[C9CE4B80:01C1AF4C] X-Mozilla-Status: 9007 X-Mozilla-Status2: 00000000 X-UIDL: <OF270A6BCF.11A37E70-ON85256B58.006F88B4@martineau-walker.com> x-gfisavedcharset: iso-8859-1 Content-Type: text/html; charset="iso-8859-1" Mrs. Carter: Please see attached documents from Karl Delwaide. Nicole Holmes Secrétaire/Secretary Karl Delwaide Fasken Martineau DuMoulin s.r.l./LLP Suite 3400, 800, Place-Victoria Montréal, Québec Canada H4Z 1E9 courriel/Email : nholmesat_private Ligne directe/Direct line : (514) 397-7554 Télécopieur/Fax: (514) 397-7600 www.fasken.com [converted from Word document --DBM] Karl Delwaide Direct (514) 397-7563 kdelwaideat_private February 6, 2002 File No.: 130/116079.6 BY E-MAIL AND BY BAILIFF Mrs. Nancy Carter 215 Madison Avenue, # 3 Toronto (Ontario) M5R 2S6 Madam Carter: Re: Defamation against Inter.net Canada On January 9, 2002, on behalf of our client, Inter.net Canada, I have signed a letter addressed to you, by “Registered Mail”, at 215 Madison Avenue, # 3, in Toronto. However, this letter was not claimed, as shown by the Post Office stamp appearing on the envelope returned to us and received at our offices during the week of January 28, 2002. Consequently, you will find herewith, as an attachment to the present letter, copy of the letter which was addressed to you on January 9, 2002. Since this letter, our client has informed us that you have taken another step to bring your personal commercial dispute with Inter.net Canada to the attention of Inter.net Global, the U.S. company. We wish to inform you that Inter.net Global is a distinct entity from our client. Any action with respect to your personal commercial dispute with Inter.net Canada should be addressed directly to our client’s attention, and not to the U.S. company. Please govern yourself accordingly. Yours truly, FASKEN MARTINEAU DuMOULIN LLP (Signed) Karl Delwaide Karl Delwaide KD/nh Encl. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. 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