October 29, 2002 4:00 AM PST

Who owns your e-mail?

Nancy Carter has a message for Internet service providers: Keep your hands off my e-mail.

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The Toronto-based freelance TV producer has been battling U.S.-based Inter.net Group for the past 16 months over a billing dispute she says may have cost her a lucrative job opportunity. Now she wants $110,000 in damages over a policy that led Inter.net's Canadian subsidiary to keep her ISP account open for incoming e-mail even while denying her access to the account.

Beyond the money, Carter said she wants to change the way ISPs handle suspended and canceled e-mail accounts. At stake, she asserts, is an industrywide practice that amounts to extortion, in which ISPs may hold private communications hostage until bills are settled up.

E-mail has "entered our lives at warp speed, and the law needs to keep up," she said of her lawsuit, filed earlier this month in federal court in Canada. "You can't interfere with the mail. The post office has to return a letter even when it doesn't have enough postage."

Carter's legal odyssey is unfolding in the wake of bankruptcies among major ISPs including Excite@Home and Northpoint Communications, failures that have put ISP consumer protection issues on the front burner for lawmakers in the United States.

Dave Kramer, an attorney with Palo Alto, Calif.-based firm Wilson, Sonsini, who is not involved in Carter's suit, said disputes over suspended e-mail accounts in the United States are typically covered by terms of service contracts that consumers agree to when they sign up with ISPs. In general, he said, such contracts give ISPs wide latitude to set conditions, including collecting and refusing to hand over e-mail until bills are settled.

"Still, I wouldn't be surprised to see ISPs tweak their contracts" in response to the case, Kramer said.

Related consumer protection issues have already been heating up in California, where Gov. Gray Davis recently handed Internet companies a split decision.

Davis late last month signed a bill that requires e-mail service providers to give 30 days' notice before shutting down e-mail accounts. The law, which goes into effect Jan. 1, 2003, does not apply in situations where an account holder has violated the terms of service or when service is interrupted for reasons beyond the e-mail provider's control.

Davis subsequently vetoed a more sweeping bill that would have enacted the same restriction on ISPs (Internet service providers). The governor called the bill "well intentioned," but said it failed to provide sufficiently for cases of consumer misconduct or technical mishap.

A question of privacy
Carter's legal quest began last year, when she filed a complaint with the Privacy Commissioner of Canada charging Reston, Va.-based Inter.net with violating the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA).

Enacted in 2000, the law prohibits anyone from collecting personal information without consent and putting it to commercial use.

Carter argued that Inter.net had violated the law by collecting e-mail messages addressed to her and using the files as a weapon to force her to pay a disputed bill.

The commissioner does not reveal the names of parties involved in suits brought before him. Nevertheless, Carter said the findings related to her case were published in a report issued Aug. 28. In that brief, the commissioner found that the ISP in question had failed to adequately disclose its policy on delinquent accounts, and agreed that the policy violated PIPEDA, clearing the way for a civil trial.

A representative for Inter.net, a company spun off from PSINet before its bankruptcy last year, declined to comment on the finding or the lawsuit.

According to Carter, Inter.net presented her with a $214 charge for 14 months of service that had gone unbilled because of an accounting error.

Carter said she agreed to pay half, an arrangement the company initially accepted but later rejected. At that point, she terminated the account and signed up with an alternate provider, Carter said.

The old account, however, was kept open under suspension without her knowledge, she said, and e-mail continued to pile up. Carter eventually was able to retrieve 24 e-mail messages some three and a half weeks after the cancellation, including one from a potential employer encouraging her to apply for a $65,000 contract job at the Discovery Channel. Prior to the e-mail, Carter and her potential employer had exchanged telephone messages about the position. Unbeknownst to her, the e-mail would have been the next link in that chain, but by the time she got it, the position had been filled.

In his report, Canada's Privacy Commissioner said Inter.net's policies are standard practice in the ISP industry that need to be changed.

The commissioner recommended that "the ISP immediately cease collecting, storing, and denying access to e-mails addressed to holders of accounts under suspension and adopt instead the practice of deflecting such e-mails back to the senders with notification to the effect that the messages could not be delivered."

Few companies offer e-mail senders a way other than a direct reply to verify whether their messages have gotten through to, and been read by, the intended recipient.

America Online, the world's largest ISP, provides members with an e-mail receipt notification option and lets members check on the status of e-mail sent to other members.

But AOL spokesperson Nicholas Graham said the company's privacy policy does not allow AOL to indicate to anyone other than the owner of the account whether someone had access to the account at any given time. As a result, accounts that have been suspended may continue to receive e-mail without notification to senders that the account is inaccessible to the owner.

Graham added that AOL requires members who violate the company's terms of service to return to good standing before they can access e-mail that has accumulated during this period. AOL members who cancel their accounts voluntarily lose any accumulated e-mail unless they reactivate their accounts before the files are purged, a process that may take a few weeks to complete.

AOL members who send e-mail to a canceled AOL account receive notification that the account is no longer active. Non-AOL members e-mailing a canceled account receive a different notification stating that the message did not reach its intended address.

Carter said she has pursued Inter.net in the hopes of barring ISPs from collecting e-mail sent to delinquent accounts and of forcing them to notify e-mail senders when an account they have tried to reach is inactive.

"I want the industry to stop doing this," Carter said.

 

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