The Hindu Business Line : Who owns your (e)mail?

The tracks of a letter in the physical world can be traced. But cyberspace laws are different. Your ISP can suspend your e-mail account but keep it open. Your mails pile up but you can't reach them. And worse, people who mail you don't know you can't read your mail. So whose e-mail is it, anyway?

HAVE you ever had the experience of your e-mail account dying on you? I'm sure you have — and that you've discovered that it can be as devastating as one of your work mates keeling over in the middle of a brilliant presentation that you're making on whatever you make presentations about. That's because, when you stop and think about it, e-mail accounts are your work mates. And they don't gossip about you at the water-cooler either... .

Well, as it turns out, you aren't alone.

Among others who've been through this is Nancy Carter, a Toronto-based freelance TV producer. She has been slugging it out with the US-based Inter.net Group for about a year-and-a-half now after it denied her access to her e-mail because of a billing wrangle and, according to her, thereby messed up her shot at a good job. She's suing the group for $110,000 in damages over a policy whereby its Canadian subsidiary kept her ISP account open for incoming e-mail - but denied her access to the account! Which, incidentally is the standard industry practice.

Carter argues, and many agree with her, that the way in which ISPs deal with suspended and cancelled e-mail accounts basically boils down to extortion, plain and simple, in that they hold private communications `hostage' until the dues are settled.

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

According to Carter, Inter.net hit her with a claim for $214 charge for 14 months of service that had gone unbilled because of an accounting error. She says that she had agreed to pay half the amount, a deal which the ISP first accepted and then rejected. Miffed by the ISP's alleged switch, Carter terminated the account and signed up with an alternate provider.

The problem, however, was that her old account was kept open under suspension without her knowledge... and e-mail continued to pile up. Carter was eventually successful in retrieving 24 e-mail messages about a month after the cancellation, — including one from a potential employer encouraging her to apply for a $65,000 contract job at the Discovery Channel. By the time she got this e-mail, the position had been filled.

Carter filed a complaint with the Privacy Commissioner of Canada charging her ISP with violation of 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.

She contended 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. While the commissioner declines to reveal the names of the parties involved in suits brought before him, he, nevertheless, held 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. Further, 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."

The vanishing act

As matters stand, hardly any 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. Take America Online (AOL), for instance. The world's largest ISP, it provides members with an e-mail receipt notification option and lets members check on the status of e-mail sent to other members. But 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.

And then again, AOL requires members who breach 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 cancelled AOL account receive notification that the account is no longer active. Non-AOL members e-mailing a cancelled account receive a different notification stating that the message did not reach its intended address.

Core of Carter's campaign

Carter says that her campaign is all about 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.

Carter's sentiments are shared by a whole lot of people whose interests have been impacted by the rash of bankruptcies that has put a bunch of major ISPs like Excite@Home and Northpoint Communications out of business.

Inevitably, the issues arising out of their predicament have caught the attention of lawmakers, especially in the US.

The basic problem here is that the suspension of e-mail accounts is usually covered by the terms of service contracts that most people agree to without having read the fine print with care when they sign up with ISPs. Predictably enough, these contracts allow ISPs to withhold e-mail in the event of the non-payment of their dues. But changes are in the offing, the opinion of some that the government has no business dictating contracts between two parties notwithstanding. Thus, the Governor of California, Gray Davis, in late September, signed a Bill that requires e-mail service providers to give 30 days' notice before shutting down e-mail accounts.

The law, which kicks in on January 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.

Getting more curious...

But Davis subsequently nixed a more comprehensive Bill that would have placed the same restriction on ISPs on the grounds that the intended legislation, though "well-intentioned," had failed to provide sufficiently for cases of consumer misconduct or technical mishap. In his veto message, he noted that the Bill "unfairly burdens Internet service providers by requiring them to give a 30-day notice before any termination or transfer of service." The preceding Bill dealing with e-mail providers "is narrower in scope and addresses the main problem that consumers and businesses face — permanent disruption of e-mail service without a legitimate reason."

Not everybody is convinced about this. Many argue that more critical infrastructure providers in California — power and water utilities and so on — are required to give consumers notice before service shutdowns. Electricity utilities, for example, are required to give 10 days' notice in most cases, though temporary repair-related shutdowns require only 24 hours, and shutdowns for lack of payment require 48 hours.

Actually, the sting lies in the tail. The Bill that Davis refers to as the "narrower" of the two, prima facie, covers a whole class of businesses that don't necessarily provide Internet service — but do provide e-mail accounts:

Like Web portals...

The word is that Yahoo and Hotmail have been caught on the wrong foot by the legislation. Yahoo says it is "currently evaluating (the law's) potential application to it." And Microsoft says that it is "in the process of analysing the Bill and how it applies to Microsoft products and services."

Obviously, this is just the beginning of something very interesting. Watch this space... .

pratap@thehindu.co.in

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