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

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

Nancy and all,

  I understand you position and agree fully with you action.  my comments
were not intended to be confrontational, but rather informational in nature
to some of the ICANNATLARGE.ORG members along with other
stakeholders/users.

  It is becoming increasingly clear that some ISP's are less than
good public servants and more interested in protecting their turf.


Nancy Carter wrote:

> After 16 months of knocking on dozens of legislative doors to try and create
> change around this issue I finally - very reluctantly - have no other option
> but take this to court.  The Privacy Commissioner's finding in my case only
> recommends the ISPs stop collecting and withholding email.  My research
> showed that none of the companies followed his recommendation, or were
> considering doing so.  I had only 45 days to make an application to the
> Federal Court, so I did - on the final day.  If I had seen that the practice
> was being discontinued within the industry I would have been satisfied.
>
> ----- Original Message -----
> From: "Jeff Williams" <jwkckid1@ix.netcom.com>
> To: <declan@well.com>
> Cc: <politech@politechbot.com>; <nancar@sympatico.ca>; "atlarge discuss
> list" <atlarge-discuss@lists.fitug.de>
> Sent: Monday, November 04, 2002 9:09 PM
> Subject: Re: FC: Nancy Carter, who is suing Canadian ISP, replies to
> Politech
>
> > 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
> > > tomts16-srv.bellnexxia.net          (InterMail vM.4.01.03.16
> > > 201-229-121-116-20010115) with ESMTP          id
> > >
> <20020206203307.QIBU12914.tomts16-srv.bellnexxia.net@mailmtl2.fasken.com>
> > > for <nancar@sympatico.ca>; 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: <nancar@sympatico.ca>
> > > Cc: <KDelwaide@mtl.fasken.com>
> > > 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: <NHolmes@mtl.fasken.com>
> > > 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: <NHolmes@mtl.fasken.com>
> > > 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 : 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.
> > >
> >
> > -------------------------------------------------------------------------
> > > POLITECH -- Declan McCullagh's politics and technology mailing list
> > > You may redistribute this message freely if you include this notice.
> > > To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
> > > This message is archived at http://www.politechbot.com/
> > > Declan McCullagh's photographs are at http://www.mccullagh.org/
> >
> > -------------------------------------------------------------------------
> > > Like Politech? Make a donation here: http://www.politechbot.com/donate/
> > > Recent CNET News.com articles: http://news.search.com/search?qÞclan
> >
> > -------------------------------------------------------------------------
> >
> > 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
> >
> >

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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