[atlarge-discuss] Re: FC: Nancy Carter, who is suing Canadian ISP, replies to Politech

[Jeff Williams <jwkckid1@ix.netcom.com>]

Declan and all,

  Just the other day someone in Canada was attempting to tell me
that Canada does not have a litigious nature.  Seems this article would
run against that contention...

Declan McCullagh wrote:

> 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'.
>
> Return-Path: <NHolmes@mtl.fasken.com>
> Received: from mailmtl2.fasken.com ([206.162.171.194])          by
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> for <nancar@sympatico.ca>; Wed, 6 Feb 2002 15:33:07 -0500
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> To: <nancar@sympatico.ca>
> Cc: <KDelwaide@mtl.fasken.com>
> Subject: Inter.net Canada
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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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Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 127k members/stakeholders strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number: 214-244-4827 or 972-244-3801
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208



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