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

[Declan McCullagh <declan () well com>]

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" <nancar () sympatico ca>
To: <declan () well com>
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'.




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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 : nholmes () mtl fasken com
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
kdelwaide () mtl fasken com
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.




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