ISP Sued Over Suspended Email Account

Saint Aardvark writes "A Canadian woman is suing her former ISP over their suspension of her email account. Their accounting system screwed up, and they suspended her account while they sought payment from her. What she didn't realize was that email sent to that address continued to pile up, without any notification to the sender that she had no access to it. She lost a chance at a $65,000 contract job at the Discovery channel because of this. Read the article at CNet, the complaint she brought to the Canadian Privacy Commisioner, and further details from the woman herself on Cryptome.org."

Re:So if...

A telco cuts someone's telephone line because she didn't pay, then she sued the telco, claiming that she missed an important phone call costing her tons of money. Is this reasonable?

If your telephone line is disabled, callers receive a message telling them that "this line is out of service" or suchlike. The complaint here is that her account was not disabled, but she was refused access to it -- email continued to pile up, outside of her reach, while people assumed (from the lack of a bounce message) that it had reached her.

But should the rules be changed?

She just assumed too much that e-mail would bounce off. In fact, once an account is suspended, ANYTHING can happen to her email account.

I haven't read all the facts in this case, but it sounds as though what you say here is indeed common practice in the industry. The question is, should it be allowed?

E-mail has rapidly become a very important part of many people's daily lives. Everything from bills to job offers is sent by e-mail, and it is assumed (rightly or wrongly) by many organisations that mails they send are received by the addressee, even though there is no equivalent of registered mail.

Under those circumstances, it seems reasonable to mandate that service providers must either perform the service they offer, or inform someone trying to use it (by sending mail) that the service has not been performed. Leaving everyone in the dark, as appears to have happened in this case, clearly can be misleading and cause significant damage to parties involved, as also appears to have happened in this case.

If the service provider is allowed to operate on this basis, and this woman can't get compensation from them having been harmed by their policy, then the law governing the validity of the service provider's Ts&Cs should be reviewed, IMHO. Allowing this behaviour to continue is potentially very harmful to the small person/business, and does no good to anyone, except possibly a service provider holding their customer to ransom (and over their own mistake, at that, in this particular case).

Re:So if...

No, it isn't reasonable. But that's not what happened here. She continued to pay her bill. They screwed up. Jesus, jsut read that article.

Re:So if...

She paid all the bills she was sent, so yeah, it is unreasonable for them to cut off the service.

Then they discovered their mistake and contacted her, saying "We fucked up, you owe us another $214". She complained about what is essentially a surprise balloon payment (and rightfully so), and the ISP agreed to reduce the amount she had to pay them by half. Let me emphasize that this was the arrangement agreed to by both parties! This is the only part of the whole thing that is reasonable.

But then the ISP changed their minds about that, and decided she had to pay the full amount. This is obviously unreasonable, since they had already agreed that she only owed them half the charge for their screw-up! She, rightfully, responds with "Fuck you guys, cancel my account." But they don't, and they subsequently hold her email hostage for payment they have already agreed that they are not owed.

Had they actually canceled her account, as they said they would, the email would have bounced and Discover would likely have tried to contact her another way.

So, yeah, it is totally reasonable that she sue the ISP, who, through it's dishonest and unreasonable behavior, has cost her a large amount of money. In fact, it would be unreasonable for her not to sue.

that really sucks, but...

she should have been notifying people that might send her e-mail to send it to an alternate address. if all the e-mail had bounced back instead of going on to her inbox, i imagine the end result would have been the same.

Not really.

She was already in telephonic contact with the person. So if ther email had bounced back, there would have been chance that the person CALLED her. It did not so neither the Sender , nor the receiver were aware an email was sent/not read.

And as such , the telco is responsible to either completly block the service or completly allow it. Not an half way.

I wouldn't be so sure

Bouncing someone's email is the equivalent of the telephonic error: "The number you have dialed has been disconnected or is no longer in service." If you called someone who was negotiating a contact with you and got that message, would you still award the contract? I think not.

I ran an ISP with the same suspension policy. Email was allowed to pile up because to bounce it might damage the credibility of the account holder more than their not responding.

If a suspended customer wanted mail bounced or forwarded, we would honor that request; but the default was to simply lock the account. Nearly all suspended customers resolved their situation within hours (poor, addicted L-users), and many of the unresolved suspensions were the result of clients moving or dying (really.)

I feel for her, but the only alternative for ISPs is to pursue collections of overdue accounts. This is simply way too expensive. Bill in advance and suspend non-payers is the only efficient model. Anything else spikes your costs.

Acount system screw up=ISP fault

This ISP better get ready to fork up 65k + damages.

Re:Acount system screw up=ISP fault

Most (read: any ISP above moron status- doesnt mean all of them by any means!) have the dreaded "Acceptable Use Policy". Somewhere in the AUP, or some other disclaimer, ISPs have a blurb where they state they cannot be held accountable for financial loss due to system downtime and misconfiguration. I equate this to people who sue doctors out of business because in that inevitable mathematical instance of them screwing up (or not screwing up, just being out of luck) where they lose a life, and the family makes sure they dont come back. There, another good doctor who messed up a patient which will be replaced by some n00b who bats .650 but no one knows that cause he hasn't had a screw up yet. Tough luck lady- if you were clueless enough to make email your ONLY venue for contact on a 65k job, you deserve what you got. This is common sense people- would you hire someone who couldnt leave a phone number on their resume? Now for the rest of you who think she should get that 65k from the ISP- the ISP probably is going to be angry, but it's not them who will pay for it- their customers will. Either that or the ISP goes out of business and you just screwed up contact points for thousands of people, at the price of vindicating one. Sure, you can argue a flawless transition, but let's be honest- when's the last time an ISP level migration worked? When's the last time one that worked had people who were still OK to be bothered with it?

Re:Acount system screw up=ISP fault

Most (read: any ISP above moron status- doesnt mean all of them by any means!) have the dreaded "Acceptable Use Policy". Somewhere in the AUP, or some other disclaimer, ISPs have a blurb where they state they cannot be held accountable for financial loss due to system downtime and misconfiguration.

So what? You are not absolved of responsibility for your actions simply because you create an AUP that states that you are not responsible for your actions. Ski rental places have the same thing: You sign a form saying that they are not liable for any injury even if they botch the equipment. That agreement isn't worth the paper that it is printed on. If their screw-up causes you injury, then you have a right to damages.

This is common sense people- would you hire someone who couldnt leave a phone number on their resume?

Read the article next time instead of simply slandering the victim:

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).

Some points:

1. She is a freelance television journalist.
2. She was approached, via e-mail, with a job offer.
3. There is no evidence that she solicited the offer by distributing her resume.
4. When she did not respond in a timely manner, she apparently missed out on the opportunity.
5. Because the ISP continued to accept mail for the woman but hold it hostage, the potential employer received no bounce and, thus, had no reason to phone.
6. There is no indication that the potential employer even had the woman's phone number.
7. A female journalist might have very good reasons for not widely disseminating her phone number.
8. When there are multiple qualified people available, the potential employer may have simply chosen to contact another one rather than trying to track down someone who did not even answer the e-mail that was sent.

Now for the rest of you who think she should get that 65k from the ISP- the ISP probably is going to be angry, but it's not them who will pay for it- their customers will.

If the ISP's rates go up, then customers switch to more responsible ISPs -- an example of the market punishing incompetent providers. More likely would be that the ISP would change their policies such that they would only turn off e-mail as a last resort and/or that they would bounce messages sent to disabled e-mail addresses.

I equate this to people who sue doctors out of business because in that inevitable mathematical instance of them screwing up

Perhaps you will be that "mathematical instance."

It seems to me that you believe that no one should sue anyone. A doctor can kill patient after patient through malpractice but no one should sue him -- and since no one sues, his incompetence doesn't come to light. Lost a loved one? Tough. Lump it. Lost out on a job because your ISP actively, and wrongfully, shut off your e-mail? Too bad. Don't you dare sue them. You should run for office. You'd get lots of campaign donations from big companies that want to be able to f*** over the consumer without fear of reprisals.

Re:Acount system screw up=ISP fault

I've got to take exception with your point #6:

6. There is no indication that the potential employer even had the woman's phone number.

Reading the cnet article points out the following fact:

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.

So, had the message bounced, the potential employer would have been able to contact her by telephone.

Re:Acount system screw up=ISP fault

The phone company screws up, and disconnects your phone, during which time your phone number is pulled from a hat on some radio show and you win a brand new toaster. According to the competition rules, if they can't reach you on the phone, they pull another number from the hat, so they do and that person answers and wins. Now, would you have a case against the phone company?

Yes. It's called "consequential damages."

You like analogies, so consider this one: You buy a new car for your wife. It suddenly comes to a dead stop on the freeway at night with a total electrical failure. She is killed and your son is maimed when a tractor-trailer plows into the unlighted vehicle. You discover that the problem was that the factory left the positive battery cable lying against the exhaust manifold, it melted through, and started an electrical fire that left the car powerless. Do you think all that the car company owes you is a replacement car? Do you think that they should not have to pay out anything for killing your wife and leaving your son permanently disabled?

It's not the ISP's responsibility.


If the ISP is not responsible for their screw-up, who is? Oh, I see... You're one of those right-wingers who thinks that all corporations should get a free pass. Now matter how badly they screw over the consumer, they should be immune from lawsuits.

Re:Acount system screw up=ISP fault

No, it is.

As I said, Hadley v. Baxendale, 9 Ex. 341 (1854) is basically the seminal holding on the subject. The plaintiffs had a mill in Gloucester. A crankshaft broke, and in order to get a new one, the millers had to ship the old one back to the engineers in Greenwich so that they could copy it in making the replacement.

The plaintiffs gave the crankshaft to the defendants, who were couriers. They said that it needed to be sent immediately. However, there was a mix-up and it wound up being rather late, obviously reducing the profit of the plaintiffs, since their mill was totally out of commission during this time.

BUT the defendants only had to pay damages as to the speed of the shipping, and not as to the lost profits. This is because while it was obvious to them that they needed to be fast because that's what the customer insisted on, it wasn't obvious WHY. There was no way that they could have known the full extent of the damages that would result, nor is it commonplace for couriers to know that if they are late delivering _a_ package that someone will lose a fortune as a consequence. That's only true with regards to certain _specific_ packages, or a business that _mostly_ carries critically important packages, such as organ couriers.

The case is even more clear cut here. While people _do_ conduct business over email, a very large quantity of email is spam or personal mail that does not harm people if there is a problem with the non-performing party to the service contract.

Unless the ISP was specifically informed that this PARTICULAR email was of the gravest importance BECAUSE it was worth many thousands of dollars, then they should be able to treat it as though it is any generic email and not worth special care. After all, how could they have possibly known? Are they mind-readers? No. It's unfair to punish them for something that's unforeseen.

If we adopted such a rule, then the possible liabilities of entering into a contract would be so high that we would discourage people from ever so doing, or from doing so affordably in the general case. This is because the party subject to the liability has to predict uncertain and perhaps uncontrollable matters, such as the liklihood of outages caused by someone in a different country running a backhoe through a major fiber line, DDOSes, email viruses, etc.

Since we would rather have lots of transactions occur, we default to the general case, and do not make parties subject to unusually high liabilities unless they are specifically forewarned of them, and can opt not to enter into a contract such as that, knowing the risk they're being asked to take.

Whoever modded this guy up...

Needs to do a little research when it comes to civil court.

There is a big difference between consequential damages (aka liability) and potential damages. In your analogy, you give a great example of product liability...car company is neglegent in constructing their vehicle -- faulty car leads to accident -- accident leads to deaths -- deaths lead to liability lawsuit -- lawyers get rich. Ford and Firestone have already experienced it first hand.

But, the case here is completely different. The "job offer" presented to this independent worker is not set in stone! It is merely an "offer" which she could "apply" for. The fact that she lost the opportunity to apply for the job does not AT ALL equate to $65,000 worth of damages. The difference between this case and a liability case:

She has not lost anything but an opportunity.

Money was not taken away from her. Her significant other / child's / family member's life was not taken from her. Nothing was taken away from her but an opportunity to earn money. I can't sue my roommate for keeping the phone busy when a radio show randomly picked my phone number to award me $1,000. All I did was lose an opportunity to earn money. Civil courts can not and do not put a price value on lost opportunity. It's outrageous that she even thinks that she's entitled to a full $65,000 when, if she was awarded the contract, she would have had to work to earn the money.

Bottom line: she should be awarded three months of ISP fees for the ISP neglecting her the services they were holding hostage, plus a possible $1,000 in punitive damages. Nothing more.

Not only did she lose the job offer...

... she also lost the chance to get a low interest mortgage, purchase cheap airline tickets, and enlarge her penis!

The ISP's terms and conditions?

Hmm, from their terms and conditions:

4.1 Inter.net makes no guarantees as to the continuous availability of the Service or any specific feature of the Service. Inter.net reserves the right to change the Service at any time with or without notice. Features of the Service that are subject to change include, but are not limited to: access procedures, commands, documentation, hours of operation, menu structures, and vendors. Inter.net cannot and will not guarantee that the Service will provide Internet access that is sufficient to meet your needs.

4.2 THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NEITHER INTER.NET NOR ITS AFFILIATES WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS.

As usual, they don't guarantee to offer any service at all. Surely that puts them in the clear here?

Re:The ISP's terms and conditions?

No. Just because something is in a contract doesn't make it legal. Happens all the time. You can sign a contract agreeing to kill someone, but obviously, that contract is null and void. Those trucks with the stickers plastered on back that say "not responsible for broken windshields"... they're responsible.

In this case, a judge is gonna say that the spirit of the contract was for x amount of Net service over x period of time. A lawyer obviously didn't even look at the ISP's contract before they started using it.

Re:The ISP's terms and conditions?

As usual, they don't guarantee to offer any service at all. Surely that puts them in the clear here?

Except, perhaps, that her ongoing lack of service was due to an explicit suspension after an accounting mistake, and was not due to an inadvertent or accidently dropped e-mail, temporary outage, or virus.

Parking lots typically post disclaimers indemnifying them from any responsibility for stolen or damaged property, but that shouldn't protect them if their own attendents start smashing the windows of parked cars or even if they turn a blind eye to blatant abuse.

Also, her actual complaint has more to do with what happened after she tried to cancel her account (they left her mailbox active and didn't bouce incoming mail) than with her temporary lack of service.

I don't think her case is necessarily that strong or that it falls under these terms and conditions, but even if it did I don't think that such waivers would necessarily put the ISP in the clear.

Re:too bad -- she doesn't have a telephone

no -- that's not what I meant. If the contract owner had really wanted to hire this
person, they might likely have called her sometime over the 4 weeks that she didn't
reply to the email they sent.

What I am saying is that this $60,000 contract was nowhere near a final deal which was
lost because of this email message. She simply wasn't prepared to do the job if she
would let this lead be missed so easily, and her
only connection to the business world is a sketchy email isp account.

The $100 she owed comes from the link she wrote. Here's a quote:
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.

It really doesn't matter if she owed that or not, if she thought there could be job or contract offerers worth thousands in there, she would have
been happy to pay and then switch the email to somewhere else.

I wonder if

anyone has ever successfully sued the postal system for a lost letter? Given our litigation-happy society, I can't help but think someone has tried.

Re:I wonder if

I'm sure they've tried, but mysteriously, the summons never seems to arrive...

Isn't it always just like that...

After working at a couple local dial-up ISPs, I always find it funny that our terms of service basically guarantee that if you have a problem that you'd like to pursue legally, we can kick you in the beanbag and then charge you for it.

Noone ever reads those things.. maybe they should. Heh.

Did I read this wrong?

She's not mad because she was without an email address; in fact, she had already changed email providers.

so, even though the email was sent to her old address (in which case you gotta ask -- did she use an old resume? did she even give out her new address?), she's mad that the old ISP didn't bounce the email?

in other words, she's suing because she would've wanted the potential employer to notice the bounced email, and try to contact her to find out her new address???

Sorry... that just doesn't cut it...

Come on people think about this a moment

Lets put this in terms that anyone should be able to understand..

1. You live in a apartment.
2. They evict you for what ever reason.
3. You never had time to forward/tell people new address.
4. Mail goes to old address.
5. You ask for mail.
6. They tell you "No not until you pay us what you owe".

This is a FEDERAL OFFENSE, punishable by jail time..

This is EXACTLY what they did to her, but only in the "virtual" world..

Email is becoming so important to our everyday lives that maybe laws should be passed to protect email, just like they where passed to protect normal mail.

Re:Come on people think about this a moment

This is EXACTLY what they did to her, but only in the "virtual" world..

So she should virtually win the case. The ISP should virtually pay here large amounts of virtual cash for her virtual damages. Seems virtually fair to me.

Re:Come on people think about this a moment

Email is becoming so important to our everyday lives that maybe laws should be passed to protect email, just like they where passed to protect normal mail

Sure, and you're going to pay $0.35 per message for the protection. Oh, and that's only for non-guaranteed protected email. If you want a guarantee, we'll charge you $3.50.

What? Did you protection comes free? (Need to watch more Sopranos if you did).

Think about why email is free for a moment - you're paying for Internet transport (essentially layers three and four of the OSI model), and you're free to do whatever you want above that.

But now you're asking for application-layer guarantees. Here's what comes with your demand:

- specification of how you may and may not use your application layer. Count on Microsoft Outlook/Outlook Express as the only permitted email client. Do you think we have time to support your Linux system when 90% or more are happy with Outlook?

- creation of rules on what kinds of messages are permitted; e.g. attachments may not exceed 1 MB, must be known and permitted media types (no MP3s or ZIPs since the RIAA will quickly get into this game)

- a fee per message and per month for your "guaranteed email."

- government rules, regulations and restrictions on the whole business.

Understand that the USPS salivates at your demand for safety/protection/guarantee in a world that doesn't have them. They've prepared numerous proposals for guaranteed email (including my favorite that would make my email address something like [e-mail] m ).

So make sure you're ready to pay the price (in dollars and freedom) before you demand big brother makes email "safe" for you.

*scoove*

Come on, guys....

I can't believe, what, three-quarters? of the posts on here are people going "OH WELL SHE SHOULD HAVE PAID THEN DUH".

The accounting system screwed up, ok? She was already paid up and they wanted more money.

Now, the ISP terms said they wouldn't guarantee error-or-interruption-free service. BUT...this isn't covered under that. It was an accounting error, and they suspended her account. This is not the same as if, say, their DNS servers borked.

I'd say she deserves compensation. Definitely. I have had my share of burns from ISP's with OUTRIGHT SHODDY accounting and business practices. Fortunately, nothing so serious...yet. About the only problem was paying THREE TIMES at their suggestion because they said the transaction didn't go through....and then receiving a bill for all three charges. That was an immediate cancel, and lucky for them they credited back the amount.

I hope she wins the case, I'd like to see some of these ISP's get a little more professional. It is a business after all, not a geek club.

Re:Come on, guys....

"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."

Sound more like she wasn't billed, and for 14 months kept using the service, even though she
knew she wasn't being billed.

"Carter said she agreed to pay half, an arrangement the company initially accepted but later rejected."

And then on top of it, when they realized she wasn't paying, she tried to get out of paying for what she owed.

Re:Free Cable TV

And the key difference there, is that you made a diligent effort to fix their mistake.

It's like finding a hundred dollar bill on the ground that someone just dropped in front of you. You go up to them, tell them you saw them drop it, and it's theirs.

They insist it's not yours. You continue to tell them its theirs, and back and forth. Finally you give up after arguing with the guy for 5 minutes, and pocket the bill.

They see you on the street 6 months later, and demand their 100 dollar bill back, or they'll call the police.

In this isp's case, you took the bill, didn't tell the person in front of you, followed them around, and kept picking up the bills they dropped. When they reviewed security camera footage of the area later, realized you were the one that took the 100 dollar bill, you deny it, and then sue them when they tell you to stop following them.

I'm going to sue Hotmail

Without even so much as asking, they just deleted my account with no backup of my inbox. Because of MSN/Hotmail, I've now lost these amazing oppurtunities to:

Enlarge my penis
Enlarge my breasts
Meet Singles in my area
Meet Sexy singles in my area
Meet my former classmates all over again
Refinance my house at a low, low interest rate
Consolodate my debt
Copy DVDs
Lose weight while I sleep
Work from Home
Accept written guarantees of hundreds, if not thousands of dollars
Get my .BIZ or .INFO domain while it's still available.

Watch out Bill Gates... I've got about 100 million dollars in lost oppurtunity because of you, and I'm going to come and get it!

More power to her...

I know that many people are probably going "WTF?!" at this, but I can see how she's justified. Anyone providing a service, especially a paid-in-advance service, should be required to actually maintain their services properly. If this doesn't happen, and it causes damages, I belive that the problem should be sorted out legally.

The woman might not be entitled to $65,000, but if she is working right now, she may be easily entitled to the differences between her current job's pay and the new one, for a court-determined period of time (like, a year, or maybe even two or three if it is determined that this amount of time will be required to get back 'on track'.

just my two cents...

sounds a little iffy

She lost a chance at a $65,000 contract job at the Discovery channel because of this.

I don't know about you guys, but that seems a little bit odd to me. Normally an employer would call you if they were offering a 65k contract job. Maybe if she left them her phone number it would have worked out.

Re:sounds a little iffy

Well, it's 65k canadian, which works out to about $3.50 US. The cost for the long distance call would have been greater than the salary.

So, she lost a *chance* at $65k ...

And what was the chances of her actually getting the contract?

I see that she's suing for 2x that ... sounds like a great deal -- sue for double what you might have gotten, 1/3rd goes to your lawyer, netting you more money ($87k) than you would have gotten in the first place (assuming that you even got the job!), and you don't have to even work for it!

Nice to know that the US isn't the only place that's sue-happy.

From the C/Net article --

... 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.

If my mail is having a temporary problem, and it can be queued up for me until I can access it again, that's what I want -- I don't want it bouncing. Bouncing email is bad bad bad!

Are these people aware of what they're asking for?

The ISP's contract appears to be pretty clear -- they don't guarantee that everything will work all the time. Pretty standard, I think. It'll be interesting how this turns out (personally, I hope that this goes to court, and the woman loses.)

I wonder what the next step is -- suing your ISP because their spam filter blocked/flagged an email offering you a $65k job? Or even worse -- suing them because they didn't filter your spam for you, and so you accidently deleted the $65k job offer yourself, think it's spam.

People, email is unreliable (and so is postal mail, for that matter.) If you don't get an email (or postal mail receipt) back that acknowledges receipt of that mail (Return-Recept-To: doesn't quite cut it), or your friend doesn't call you and say `thanks!', you cannot be certain that it's been received. Period.

(Return-Receipt-To: isn't good enough because it's sent by the receiving mail daemon when the mail is received, not when the mail is actually read. After receipt, it could be lost to a disk failure, system problem, spam filter, or just accidently deleted.)

Re:So, she lost a *chance* at $65k ...

Beyond issues of mandatory bouncing and bad reply-to addresses, there are more than just technical problems with her goal 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."

It also means that ISP's wouldn't be allowed to recycle e-mail addresses and might even create privacy issues (ironic because she originally filed her complaint with the Federal privacy commissioner). For instance, the CNET article mentions how AOL sends out different notifications to members and non-members, as though this is a bad thing. I think the intention of this type of policy is to prevent