FC: Nancy Carter, who is suing Canadian ISP, replies to Politech

From: Declan McCullagh (declanat_private)
Date: Mon Nov 04 2002 - 11:28:04 PST

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    Previous Politech message:
    "Toronto woman sues over her stored email, wants $110,000"
    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.
    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 
    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 
    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'.
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    To: <nancarat_private>
    Cc: <KDelwaideat_private>
    Subject: Inter.net Canada
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    Mrs. Carter:
    Please see attached documents from Karl Delwaide.
    Nicole Holmes
    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
    [converted from Word document --DBM]
    Karl Delwaide
    Direct (514) 397-7563
    February 6, 2002
    File No.:  130/116079.6
    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,
    (Signed)  Karl Delwaide
    Karl Delwaide
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