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

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

Nancy and all,

  Nancy, you comments/observations and statements below adequately
address or correct Judyth's errant and grossly mistaken remarks in her
previous response on this thread.  I also as you know, attempted to
steer Judyth in the right direction.  However her contentions and
observations were and do, although wrongly reflect a political
diatribe that is present in the IT segment of the world today.

  What actually concerns me and our [INEGroup] members
and as I understand it, many other stakeholders/users, is that
Judyth is seeking a secretariat position for a new fledgling
organization, ICANNATLARGE.ORG which is purporting
to represent any and all interested stakeholder/users of the
Internet.  With Judyth's expressed comments which you included
below, it would seem that such a diatribe or political ideology
as she expressed is contrary to the desires of many stakeholders/users.
Hence my obvious concern...

Nancy Carter wrote:

> Judyth, Jeff, Declan, et al.;
>
> "It is human nature to look for leverage against somebody who owes you money
> and so blocking access to your mail until you pay up is something many ISPs
> do."
>
> I don't think that there is a single democracy in the world that allows for
> the interception of personal communication without a warrant.  This
> principal is deeply ingrained in our social consciousness; not only do the
> customs of society enforce our expectation that private communication will
> not be intercepted, statute laws are in place to guarantee it.
>
> As David Waite at Industry Canada put it: "Laws regarding interference with
> the mails were put into place to ensure confidence in a system which is
> fundamentally important to the pursuit of commerce and to limit the
> potential collateral damage from non-delivery of important messages"
>
> These are well established principals in democratic society upon which we
> have built important elements of our social, economic and cultural identity
> and infrastructure.  That the majority of ISPs are/may be acting in
> contradiction of these basic principals when they deliberately intercept and
> withhold communication is a serious concern.  The claim by ISPs that this
> practice is a 'service' that benefits the majority of their customers whose
> accounts they have suspended seems disingenuous (spin?).  Tom Copeland,
> Chairman of the Board of Directors for the Canadian Association of Internet
> Providers, said to me in an email last year: this practice is a "nudge" to
> remind overdue customers to pay up.  By our social and legal standards, this
> is a lot more than a 'nudge' - it's a big whack on the head.
>
> > >There's a certain logic to it: their business is providing you the access
> and server space, and you are supposed to pay for that service in order to
> obtain it.  If you don't pay your bill, you get cut off, just as you would
> if it were somebody else like the phone or electric company.
>
> No company would last very long if it kept providing service to customers
> who weren't paying for it.  I have and always will stop working for someone
> if they don't pay my invoice after 30 days and/or haven't discussed the
> situation to make a payment arrangement with me.
>
> > > The most interesting questions for outsiders will be whether the courts
> decide your e-mail is like telephone calls (the phone company has no
> responsibility to deliver them if your line is cut off for non-payment) or
> like postal mail (the post office is obliged to deliver it to you if you
> have filed a change of address but allowed to simply discard it otherwise),
> and what an ISP is supposed to do if a customer refuses to pay but wants
> her/his mail delivered anyhow.
>
> I think email is email - analogies to other forms of communication will be
> useful to a point and then will fall down.  It is time for the courts to
> determine the legal status of email in and of itself.
>
> >   True.  But the PIDEPA will be the deciding factor in the judges decision
> > if indeed the legal representation that Nancy has secured is skilled
> enough...
>
> >From your email to God's ear.  I'm very grateful to have the opportunity to
> bring together a team of experts as 'friends of the court' who will help
> address the myriad interpretive arguments that will be brought forward.
> This may include the Privacy Commissioner, seizure experts, privacy experts,
> SLAPP experts, etc.  I'm also looking at the criminal code for its
> application to my case.
>
> > > Your ISP has no obligation to the *sender* for delivery of the message,
> or to store it on their system ..
>
> I will be asking the courts to look at this.  In my case Inter.net Canada
> Ltd. did purposefully intercept communication from people trying to contact
> me.
>
> > > Given that court cases are stressful and expensive, most people prefer
> to reach a settlement instead.
>
> Court cases can also be empowering, intellectually stimulating, and deeply
> satisfying.  If needed, I'm prepared to take this to the Supreme Court of
> Canada - in fact, I'm expecting to.  And, thanks to the support and
> commitment of several dedicated and talented lawyers who've taken this on
> pro bono, this isn't a financial burden.
>
> > > What strikes me as being on the American model is the amount claimed and
> the assertion that the ISP was obliged to provide service for an account in
> default.
>
> I don't, and nor will the courts, expect ISPs to provide service to accounts
> that are in default.  My case is addressing the purposeful collection and
> retention of my email *after* I'm shut out.  As I was frustrated by several
> errors of fact in the Privacy Commissioner's Report of Finding in my case, I
> welcome the opportunity to have the facts of my case against Inter.net
> Canada Ltd. presented in court.
>
> As to the *amount claimed* here's why:
> 1) I believe I was harmed by Inter.net's action and am asking the court for
> damages that I have mitigated appropriately.
> 2) In the face of overwhelming societal norms, existing statute law, and the
> Privacy Commissioner's Report of Finding recommending this practice be
> immediately ceased , ISPs continue to intercept communication on a daily
> basis saying it is their right.  Asking for punitive damages is an
> appropriate and effective way  to establish and convey ISPs liability in the
> use of this policy - even in kinder, gentler, punitive-reticent Canada.
> Nothing says I'll get them, but it is important to ask and argue for them.
>
> ----- Original Message -----
> From: "Jeff Williams" <jwkckid1@ix.netcom.com>
> To: <espresso@e-scape.net>
> Cc: "Nancy Carter" <nancar@sympatico.ca>; <declan@well.com>
> Sent: Thursday, November 07, 2002 5:26 AM
> Subject: Re: [atlarge-discuss] Re: FC: Nancy Carter, who is suing Canadian
> ISP, replies to Politech
>
> > Judyth and all,
> >
> > espresso@e-scape.net wrote:
> >
> > > At 07:58 -0500 2002/11/05, Nancy Carter wrote:
> > > >My understanding is the Personal Information Protection and Electronic
> > > >Documents Act (PIPEDA) is intended to address more than just the
> security >of personal information. It also recognizes privacy as an issue of
> power >and control: who has it and how are they putting it to use?  So the
> fact >that the ISP did not *read* my email isn't at the heart of their
> privacy
> > > >violation.  It's that they *purposefully* collected it, giving them
> > > >extraordinary power over me, without my knowledge, and put it to use to
> try
> > > >and leverage payment.
> > >
> > > I'm not a lawyer and haven't actually studied the PIPEDA so this may not
> matter ultimately; however, I wonder whether the "*purposefully*" really
> applies in this situation.
> >
> >   It is pretty obvious that  "*purposefully*" does apply if you study and
> have
> > specific knowledge of the PIPEDA.
> >
> > >
> > >
> > > Many ISPs don't deliberately collect the e-mail destined for individuals
> but do back up customers' mailboxes when they do a server backup.
> >
> >   This is basically and generally true.  None the less collecting or
> backing up
> > is nearly one in the same thing.
> >
> > > Customers are likely to get *extremely* upset when they discover their
> own ISP doesn't do that and they've lost their mail in a server crash.
> Either way, an ISP ends up having "extraordinary power" to mess up an
> individual's life, whether it wants that power or not.
> >
> >   Also very true here as well.  None the less again such a privacy concern
> in this
> > situation does not apply as Nancy has clearly pointed from her ISP's
> already
> > known actions or implied actions.  Hence a potentially very dangerous
> > set of consequences are held over Nancy's head that should never occur.
> > Not the least of which is the huge potential of stalking.  As Nancy is a
> > woman, this danger is specifically troubling...
> >
> > >
> > >
> > > It is human nature to look for leverage against somebody who owes you
> money and so blocking access to your mail until you pay up is something many
> ISPs do.
> >
> >   Yes.  However such a use of that customers E-Mail still on their servers
> > is far above what is necessary to collect payment and is extra legal as
> well.
> >
> > > There's a certain logic to it: their business is providing you the
> access and server space, and you are supposed to pay for that service in
> order to obtain it. If you don't pay your bill, you get cut off, just as you
> would if it were somebody else like the phone or electric company.
> >
> >   Again the "Phone Company" comparison here does not apply.  Phone calls
> > are not a potential permanent record as E-Mail's are.
> >
> > >
> > >
> > > What complicates things here is that it's not just a normal case of "no
> payment, no service" because there is an issue of electronically-stored
> private information (any mail you had sitting on the server at the moment
> your account was blocked) and another (or several?) as concerns any e-mail
> they accepted on your behalf afterwards rather than merely bouncing it back
> to the sender with a "no such user" message.
> >
> > Again the backup of existing E-Mail which is required by law in a number
> > of countries such as Canada and the US has little to do with the fact that
> > said E-Mails are used for nefarious purposes such as delinquent bill
> > payment.
> >
> > >
> > >
> > > The most interesting questions for outsiders will be whether the courts
> decide your e-mail is like telephone calls (the phone company has no
> responsibility to deliver them if your line is cut off for non-payment) or
> like postal mail (the post office is obliged to deliver it to you if you
> have filed a change of address but allowed to simply discard it otherwise),
> and what an ISP is supposed to do if a customer refuses to pay but wants
> her/his mail delivered anyhow.
> >
> >   The Phone company comparison is not valid here as phone calls are
> > not stored or backed up.  E-Mail is frequently and required to be in
> > a number of countries by law.
> >
> > >
> > >
> > > As for the claim that the ISP is responsible for potential revenues
> lost, Canadian courts tend to be conservative: they want proof that the loss
> was real rather than theoretical (e.g., you lost a contract that had already
> been awarded to you, not just missed out on jobs you might have got if you
> could have responded in time) and might consider such a loss irrelevant anyh
> ow if they feel it was you who defaulted on your contract, rather than the
> ISP.
> >
> >   Not a valid legal argument in accordance with PIPEDA, and as Canadian
> > legal records also clearly show.
> >
> > >
> > >
> > > I don't know the facts of your case and am not judging you myself here.
> It's just that not everyone considers that anything related to the Internet
> requires a whole different set of laws from those which apply to everything
> else in society.
> >
> >   Ah, but in a number of instances or specific cases different laws are
> required
> > and being determined on a global basis as well as for individual
> > jurisdictions, including Canada. And how existing law is applied does
> require
> > a different approach as the Internet media is sufficient to require such
> and
> > more and more broadly considered such.  See: http://internetlaw.org/
> > for just one example of such...
> >
> > > The legal conditions of doing business in Canada exist already, and your
> case won't be judged by the PIDEPA alone.
> >
> >   True.  But the PIDEPA will be the deciding factor in the judges decision
> > if indeed the legal representation that Nancy has secured is skilled
> enough...
> >
> > >
> > >
> > > >The problem for me with the Priv Com's decision was that it didn't
> fully
> > > >address the sender perspective - that no sender agrees to an ISP's
> Terms of
> > > >Service.  He made a recommendation that ISPs stop this practice, but
> >doesn't hold them to it.
> > >
> > > That's an interesting point. The Privacy Commissionner has no power to
> enforce his interpretation of things -- it's up to legislators and the
> courts -- but I'm somewhat surprised he would interpret the situation as an
> invasion of the sender's privacy if the sender's information were not being
> collected and read.
> >
> >   Why?  It almost certainly is or has been read or can reasonably be
> > assumed that it has.  Hence I don't follow your logic or judgment here
> > Judyth.  Nancy's concerns as well as those that may have E-Mailed her
> > are well founded here as the Microsoft case clearly showed.
> >
> > > I wouldn't think it necessary for the sender to agree your ISP's ToS any
> more than a person overseas needs to comply with your contract with Bell
> Canada or Canada Post: they are free not to send you their information in a
> form which can be read by third parties -- for example, by using strong
> encryption.
> >
> >   Good point.  However most E-Mail users don't use strong encryption in
> > each and every post and a number of ISP's do not transmit such encrypted
> > E-mail as well.  This is especially true in Asia and Eastern Europe for
> instance.
> >
> > >
> > >
> > > Your ISP has no obligation to the *sender* for delivery of the message,
> or to store it on their system -- only to you with whom it has a contractual
> relationship, and to Canada to comply with the applicable laws. Where an
> important message was not delivered, the sender's first recourse would
> normally be to his/her own ISP and only much later to the laws of his/her
> own country against your ISP. I've not yet heard of any case where there was
> a ruling on behalf of the sender but no doubt we will see one eventually.
> > >
> > > >I must apply the American model and take Inter.net to court in order
> > > >to address the (il)legality of this very common practice.
> > >
> > > Taking a dispute to the courts isn't just an American model -- it's
> fundamental to civil law that when parties to a contract cannot agree, an
> impartial system of justice should settle the dispute.
> >
> >   Glad to see that you have finally seen the light here Judyth.  >;)
> >
> > > That doesn't mean every contract dispute in Canada is settled by the
> courts but that Canadians need such recourse when all else fails. Given that
> court cases are stressful and expensive, most people prefer to reach a
> settlement instead.
> >
> >   It is IMHO always better to settle disputes out of court if at all
> possible.
> > However in situations where a persons privacy, or security is at stake
> > it is better to seek a legal settlement.  I think that Nancy's situation
> > more than warrants such a legal decision and she is very properly seeking
> > such.  In addition out of court settlements are often at least as
> stressful
> > as those settled in court or by legal means.
> >
> > >
> > >
> > > What strikes me as being on the American model is the amount claimed and
> the assertion that the ISP was obliged to provide service for an account in
> default. The only situation I know in which that is true is (in Quebec's
> case, at least) the obligation of a public utility not to endanger your life
> in winter by cutting off your heat for non-payment. I'm not sure losing
> access to your e-mail would be seen in the same light, no matter how
> important it might be to your financial wellbeing: there is no such rule
> about not cutting of one's telephone service.
> >
> >   There is for shut in's in the US for cutting off Telephone service...
> >
> > >
> > >
> > > The PIDEPA is a Canadian law and it's up to the Canadian courts to
> decide whether it applies in your case, and if so, how and to what extent
> this case sets a precedent.
> > >
> > > Please do let us know how this turns out!
> > >
> > > Regards,
> > >
> > > Judyth
> > >
> > > ##########################################################
> > > Judyth Mermelstein     "cogito ergo lego ergo cogito..."
> > > Montreal, QC           <espresso@e-scape.net>
> > > ##########################################################
> > > "A word to the wise is sufficient. For others, use more."
> > > ##########################################################
> >
> > 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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