Internet case tests privacy law
Watchdog slaps firm for holding on to e-mails
Tyler Hamilton
Technology Reporter
An Internet service provider from Montreal broke Canada's new privacy law when it withheld a woman's e-mail messages to leverage payment on her account, the country's privacy watchdog has found.

Federal privacy commissioner George Radwanski said Canada stored and denied access to customer Nancy Carter's e-mails during a billing dispute, but failed to inform Carter of its practices in any service agreement.

"It gave the complainant no way of knowing how the company intended to handle her incoming e-mails during a suspension of her account," Radwanski said in his findings.

He concluded used Carter's information without her consent for purposes beyond that which the information had been collected. This, he determined, violated Canada's privacy law for the private sector the Personal Information Protection and Electronic Documents Act. has since altered its service agreement to better reflect its practices, company spokesperson Isabelle Turcotte said yesterday. She said the company is satisfied with the decision because it recognized that conformed to industry-wide practices.

Radwanski was unavailable for comment.

Carter's complaint with, which The Star first reported in February, began with a billing dispute last summer that resulted in her account being suspended. The freelance television researcher said she thought her account had been closed and her e-mails were being returned to each sender.

She later discovered her account had remained open yet inaccessible for weeks, and her e-mail messages had been collected and retained by as a way to extract payment.

The company called its actions normal industry practices. Carter called it a violation of her privacy rights, and said that a couple of the e-mails she didn't receive were job leads.

In his decision, Radwanski said he was concerned about the industry practice of holding e-mail messages without informing the intended recipient that they exist or notifying the sender that they haven't been delivered. He recommended that, instead of seizing such messages, Internet service providers begin bouncing them back as "undelivered."

Radwanski also recommended that Internet service providers give customers access to e-mails that have been received but not opened before an account is suspended.

Carter said the commissioner's findings are a step in the right direction, albeit a small one.

She noted the most important points in Radwanski's decision are merely "recommendations" that are not binding. Radwanski also appears to assume that all service agreements are read and signed by customers.

"I didn't sign for anything," she said.

Phillipa Lawson, legal counsel for the Public Interest Advocacy Centre in Ottawa, who is assisting with Carter's case, said that the commissioner's decision doesn't recognize many Internet service providers don't have service agreements, and those that do don't require active consent, such as a signature.

She said the finding, rather than improving consumer privacy and customer service, will likely lead to more lengthy and complex service agreements as Internet service providers attempt to protect themselves.

Jay Thompson, president of the Canadian Association of Internet Service Providers, said the commissioner seemed to accept the notion of implied consent in his decision, meaning customers accept the terms of service by simply signing up and paying for a service.

"There's an onus on the customer to understand what they're getting into when they've signed up for something."

Carter said more explicit consent and notification should be the standard. She may appeal the decision.
Note from the RBUA: Nancy Carter is a senior member of the Residential Broadband Users' Association

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