Who owns my email?

If the ISP industry wants to take the position that email is personal property, they are saying they have the ability to declare an interest in that piece of property, and to seize 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.

The problem with this is that email 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 mechanic can hang on to your car but must keep it well stored during that time to ensure that 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 creature: what is the value of an invitation to contact a producer about a job opening? 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. The value of a communication lies, not in themselves, 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 do, much more often than goods, fall into under the circumstance where the value at stake to the parties goes beyond the apparent value of what the ISP 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? This is why the application of the rules around property is questionable. They may be useful to examine how repairers and storers and others are required to carry on their activities when they try to assert these sorts of liens. But you must come back to the question of is it even proper to treat a communication under this kind of model?

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." The Uniform Liens Act contains 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. This includes repairing a good, storing it, and transporting it. 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 agencies and/or 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 kind are that the liens are not created by contracts, they're created by statutes. The liens and their statutory regimes include dispute settlement processes. For example: you have a dispute with your repairer about a $500.00 car repair bill. However, your car is worth $12,000.00. The repairer hangs on to your car in your dispute over the payment which means you're subjected to $12,000 worth of pressure over $500. The safety valve that legislative regimes offer for liens in this case is called `payment into court': you pay the $500 into court, so the issue is no longer that you are not willing to pay the bill, the issue is reduced back down to $500, not $12,000. You have your car back and you and your repairer continue to argue, but now it's clear you're arguing about the $500. Plus, you're not just stuck dealing with the repairer -- there's a process for getting to a third party to examine and assist with the dispute.

This is the Australian Telecom Industry Ombudsman model: in a payment dispute with your ISP, the customer pays the disputed amount to the TIO to get their email back then argues the dispute through that office. This model of how goods are handled is a very widespread and longstanding system for how to resolve disputes of this kind over goods. This is why there is Uniform Legislation outlining how it should be done. Still, this doesn't address the issue of whether you think, as a communication, email should be subject to seizure at all.

We should always wary in the internet realm of overworking analogies to the material world. People always want to say, "Well, it's just like this," but the truth is it's never just like that --- every analogy falls down somewhere. However, at the higher level of principle, 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 here. But if you follow that logic through to the end of the road, you get to the core issue; should the customer 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? More importantly, if generally it's the responsibility of the party that's holding on to something to ensure that it doesn'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.

My lawsuit:

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 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.

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 routine policy and practice of ISPs collecting and withholding email and ask what the right principles to apply to it are. 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, secure and protect the legal status of email communication.

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 to customers of Inter.net Canada Ltd in their Terms of Service. It wasn't available until after I filed my complaint with the Privacy Commissioner and the company changed their ToS. If customers don't know it's happening, they can't ask the questions. My understanding, from the limited amount of direct research I have done, and from the Canadian Association of Internet Providers (CAIP), is that this is standard practice in the industry. When I called ISP's to ask about their policy and practice with regard to this, it was very difficult to get a clear answer. Often sales reps and their supervisors seemed to genuinely not know about their policy in this and I was often given incorrect information. In a number of cases I had to contact the regulatory law department and speak to their lawyers. So, unless you spent hours and days trying to get answers to questions that only lawyers at many ISPs can answer, you don't have much of an option for taking your business elsewhere. Though this seems to be changing: one of the largest ISPs in Canada, Sympatico, has recently discontinued this policy. I also understand that you can access your Rogers@Home email from a remote computer if they cut you off.

In the weeks after it happened, I received an email response to my complaint from the Chairman of the Board of Directors of CAIP. He stated that his own ISP company did this routinely, though they would give the email back if the customer asked for it. He described it as a way to 'nudge' the customer for payment. I was also 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.' I understand the industry refers to this problem as 'churn'. Despite the usefulness of this policy as an account resolution tool, I would suggest a 'nudge' might be when you can no longer send email or surf the net - but taking customer's email is a great big whack on the head.

The ISP industry argues hard against any Government rules and regulation, insisting that market forces make everyone behave well. However, five months after I filed my complaint with the Federal Privacy Commissioner, Inter.net Canada Ltd. had their lawyer, Karl Delwaide of Fasken Martineau DuMoulin, email me a letter stating that because I had brought my complaint "to the attention of various associations or governmental bodies such as the Canadian Association of Internet Providers, Industrie Canada, the federal Privacy Commissioner and the federal Department of Justice" and that these actions are "clearly abusive and constitute harassment of our client". He goes on to tell me that Inter.net Canada Ltd. "will take action against you to recover any and all damages that it will suffer as a result of your actions".

This letter threatens me with what is known as a SLAPP (Strategic Lawsuit Against Public Participation). Fifteen US States have anti-SLAPP legislation because this tactic is recognized as an abuse of libel law and an abuse of the courts. While I certainly understand why Inter.net Canada Ltd. would want to have the circumstances of my dispute withheld from the public eye, nevertheless it is my right to bring this issue to both government and public attention (through media). This is one of the key ways effective marketplace discipline is achieved: by informing other consumers of my experience and by bringing gaps in legislation to the attention of appropriate branches of government. Defamation and libel laws prohibit us from harming another by lying, not from bringing forward facts.

This letter also captures the problems inherent in this issue remarkably well: it 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'.

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 principle 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 a senior official 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".

It's on these well established principles that we have built many of the fundamental elements of our social, economic and cultural infrastructure. That the majority of ISPs are acting in contradiction of these basic principles 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 to me, at best, disingenuous.

I don't, and nor will the courts, expect ISPs to provide service to accounts that are in default. Taking my case against Inter.net Canada Ltd. to Federal Court is to address the *purposeful* collection and retention of customer's email after they are shut out of their account. It focuses on two goals: 1) I believe I was harmed by Inter.net's action and am asking the court for damages that I have mitigated appropriately, and 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 the court for punitive damages is an appropriate and effective way to establish and convey ISPs liability in the use of this policy - even in punitive-reticent Canada. Nothing says I'll get them, but it is important to ask and argue for them.

This policy of seizing customer's email and using it to leverage payment from customers is standard practice in the ISP industry throughout the world. The fact that the largest ISP in Canada, Sympatico, has discontinued the practice since I began my pursuit of this issue indicates that change can be made by bringing this issue to public attention through media and the courts.

To learn more about how we can create change on this issue and force ISPs to abandon this unconscionable practice, please contact me at my email address below.

Nancy Carter
Phone: 416-653-8862
Fax: 416-653-8406
E-mail: nancar@sympatico.ca