30 October 2001

Date: Tue, 30 Oct 2001 11:34:35 -0500
From: Nancy Carter <Nancy.Carter@ALLIANCEATLANTIS.COM>
Subject: isp's seizing email for payment

Here's a fascinating legal issue that came to light when I got burned by this policy.  Please read through this and consider any arguments I might need to be familiar with as I proceed toward an eventual lawsuit.  It's an interesting issue and I'd really appreciate any feedback you can give me to help me articulate the legal/privacy concerns that this raises.

Here is the outline of how ISP's in North America are hijacking customer's email and holding it ransom on a routine basis:

When a customer's account is perceived to be in arrears, the ISP 'suspends' the account.  This means the customer has no access to their email and is unable to log onto the server to access the Internet.  BUT the ISP keeps the email address open and all messages being sent to this address are absorbed onto the server.  The senders have no knowledge that the person they are sending their message to is not receiving it.  Nor is the customer aware that the ISP is collecting their email and holding onto it.  Nowhere in any ISP's 'Terms and Conditions' is this key detail of the suspension policy made clear.

If the customer pays up what the company says they owe, then they are given access to the account again and will receive all this accumulated email.  If they are in dispute of the payment and ask for the emails back without payment, they are told they can't have the email until they pay what the company says is owed.  At this point the customer has two choices: pay up to get the email, then shut down the account permanently, or refuse to pay and lose the email.

I discovered this situation when I got into a payment dispute with my ISP and dumped them (after a series of customer service/accounting debacles with my account).  Several weeks later, on a sudden hunch, I sent a test email back to my old address - and it was absorbed.  I called the company and asked them if the account was still open.  They said yes, it had remained open from the day I was suspended.  I demanded the email back, but was told I had to pay the $106.87 they said I owed them in order to get my messages.

I spent the next few days chewing my way up the food chain at Inter.net Ltd of Herndon, Virginia.  I learned all kinds of interesting things about this company (their massive accounting system screw ups) as well as the ISP industry as a whole along the way.  Eventually I got the 24 email messages back, using lots of dire threats of legal action and public exposure to pressure them.

When I opened them, one jumped out immediately; it was from the producer of a national daily magazine-style television show asking me to call her about a job opening on her show (I'm a freelance television journalist).  As it was four weeks since her message was sent, I'd missed the opportunity - a potential contract worth $60,000.  The other 23 emails were a combination of business and personal messages that, by being hijacked, harmed me in various ways.

I contacted a half-dozen of the largest ISP's in North America and asked them if they also use a policy of 'suspending' customer accounts.  AOL (both in Canada and the US), Earthlink, Sympatico, Telus, Inter.net US and Inter.net Global Ltd. admitted (reluctantly in most cases) that they also have this policy.   The chairman of the Board of Directors for the Canadian Association of Internet Providers, our 'self-regulating' body here in Canada, sent me an email in which he states his own company regularly suspends accounts in order to 'nudge' the customer for payment.

Here's how I see it:

This is a changing world.  Ten years ago, email was not nearly as widely used as it is today, and the law is just beginning to catch up with this technology.  ISP's have taken advantage of this and are operating in ways that skate very close the edge of legality with this suspension policy. Not only does this policy harm customers, but, every time it is implemented, it functions to 'defraud' the public by not notifying the senders that their email messages are inaccessible to the customer.  The only frame of reference I had for my email account being suspended was the phone company; if my phone service is cut off callers receive the message 'that number is no longer in service'.  This is what I believed to be happening to any email sent to my account.  The alternative was inconceivable, it would be as though the phone company had cut me off, but, without telling me, kept my voice mail open and were absorbing all my voice mail messages.

There is another analogy to this:  I am running a business in a storefront with my name on the sign outside: "Nancy Carter's Widget Repair".   I am in dispute with the landlord about the rent.  He evicts me from the building, but he keeps my sign up over the door and doesn't tell customers coming in that Nancy Carter is no longer here and doesn't have access to the operation of the business.   And he doesn't tell me he's doing it.  When I find out and tell him to take down the sign and to give me the customer information he's accumulated, he says 'sure, if you pay me $106.87'.  This analogy makes it clear how this situation will inevitably cause injury to me and deceives the public.

I have contacted four branches of the federal government here in Canada with this information: the Privacy Commissioner, Industry Canada's E-business Task Force, the Consumer Affairs Bureau, and the Competition and Fair Practices Branch.   All four of these departments are concerned and are taking action based on their mandates.  The Privacy Commissioner has launched an investigation into Inter.net's suspension practice, Industry Canada is going after the Canadian Association of Internet Providers, the Consumer Bureau is looking at possible legal action, and the Competition and Fair Practices Branch is targeting this as a contract law issue.

I have also spoken with Clarke Brinckerhoff at the Federal Trade Commission and Les Lauzier at the Virginia State Attorney General's Office.  Both these men expressed immediate concern about this practice, but seemed stymied about where it falls in terms of the law and how they should respond.

I have documented everything that has happened and everything I've learned to date.  What I think this situation really highlights is that the time may have come for email to be extracted out from ISP's and either placed under the umbrella of telecommunications or regulated separately.  Email has become one of the key infrastructure technologies in our lives.  We depend on it every day to communicate with each other.  It cannot be vulnerable to private industry policy like this that blatantly jeopardizes our rights and privacy.   Business can (and do) make whatever arguments they want about why they establish certain policies, but that doesn't make it right, and it doesn't make it legal.

Thanks for taking the time to read through this material.  Please contact me with any questions, comments or advice regarding these issues.  Also, feel free to forward this to anyone you think could help shed light on privacy, ethical and legal arguments.

Nancy Carter

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Date: Tue, 30 Oct 2001 12:05:52 -0500
From: Justin Smith <jds@GWI.NET>
Subject: Re: isp's seizing email for payment

From the ISPs POV, we have received more threats of lawsuits from suspending email accounts and disabling their email account (so email to the account bounces) than allowing their account to continue to receive mail. The complaints were a combination of not being able to receive important mail while their account was suspended and the perceived stigma of their message bouncing (the "the number you have dialed has been disconnected. No further information is available" thing).

From a finance standpoint, it costs us more in bandwidth, disk space, and cpu cycles to keep non-payment accounts open than to have it closed, but the customer complaints made it clear that when an account was severely overdue, we needed to keep the accounts up while suspended.