On Tue, 2020-05-19 at 11:38 +0200, Jaroslaw Rafa wrote: > As a non-lawyer, it is hard for me to understand what you're trying > to debate about.
The legal issue is NOTICE. NOTICE is the fact that the recipient knew or *should have known* the content of the message. Let me know if you want me to expand on the concept of notice. > Even physical postal mail service does not give any guarantee that > the recipient has actually READ your mail. That is not of concern, neither for snail-mail, nor for fax, nor for internet-email. The three of them have done their job when they have delivered. After delivery, the responsibility (and the legal liability) lies with the recipient. The general rule is that spam is in the eye of the recipient: if you find my message to be irrelevant to you, I must accept your judgment. Except for some specific situations. For example, a debtor cannot say that a request to pay from a creditor is spam. It is a direct consequence of the debtor accepting a loan. This is where the concept of notice kicks in: the debtor should have known that he owes money, ignoring the payment request does not absolve the debtor from the consequences of not paying the debt. I had clients who learned this the hard way: they ignored the snail-mail letters from the bank. the bank repossessed their home, evicted them, and sold it, at great expense/loss to the idiots who ignored the letters. > If you have your OWN SERVER, a 250 reply to SMTP transaction is an > equivalent of confirming that the message has arrived into your > "mailbox". This is a conflation of the general case, and irrelevant to my concern. In the OWN SERVER case, the law will find that the recipient has willfully ignored the message and knew or should have known the message. > What's ethically doubtful in this? If it were a third party > who discarded the message - yes, that would be unethical > (and probably against the law as well). But if the recipient does it > him/herself - I can see no ethical or legal issue at all. if the third party is Gmail or Hotmail (and many more, no intention to single out those two services), then it is not even against the law, as the contract between the unaware user and the sophisticated "free" email provider stipulates that the email provider has no responsibility for delivering the message. Let me first expand on the legal issue, and then touch on the soft / ethical issue. In a previous message on this thread, on Mon, 2020-05-18 at 13:50 -0400, Bill Cole wrote: | > The legal term is *misrepresentation* | | It is not misrepresentation. The SMTP protocol definitions have | NEVER required the 250 reply to end-of-data to indicate actual | (much less final) delivery and has ALWAYS explicitly cautioned | against reliance in any way on the optional text part of any | server reply. A *misrepresentation* occurs when a person lies. SMTP is not a person. An MTA is not a person. A fax is not a person. They are merely devices that a person use to make the misrepresentation. The *LEGAL ISSUE* with an MTA or with a fax is product liability. The manufacturer of a fax device (or the operator of a fax server -- I have not owned a fax device since 2003) represents that its device or service complies with the CCITT standards (or whatever has followed since, the last time I have looked in depth at the protocols around faxes during a 1989 summer job when I programmed a software-fax), and failure to comply with the standard attracts a product liability suit. Software publishers for MTAs (and in general) exclude product liability with the licensing term that disclaims "implied warranties or conditions of merchantability and fitness for a particular purpose" (quoted text from the terms under which Postfix is licensed). Which basically says to the user: here is a knife, use it at your own risk. If the OWN SERVER sends a 250 and discards the message, the user is both recipient and operator. The law will find sufficient notice and the sender is protected. In the general case, the user is the MTA operator and is not the recipient. The user has caused the MTA to send a 250 and *misrepresented* to the sender that the message was delivered. The user has caused the message to be silently discarded, preventing the recipient from noticing the message. The user is liable for the damage caused by the lack of notice, except if said damage is disclaimed in the general terms and conditions of the service (see reference to "free" email services above). Unsurprisingly, free email services invariably have such disclaimer, preventing the recipient from making a damages claim against the operator. I believe that paid email services (from the same providers) do not have such disclaimer, and if they do, why would one want to be customer of their service? The *ETHICAL ISSUE*, and the reason why I do not want to send a 250 and discard the message in the conflated scenario: when I am the sender, and I am told 250, and that 250 cause damage to me because it is a lie, I am obviously not happy. Which wise person said 'Don't do unto others what you don't want done unto you?' The 250 + silent discard makes internet-email much less useful, and the general terms and conditions of the free services probably contemplate that case as well and allocates to the recipient liability for the damages to the sender through an indemnity clause. The recipient will "indemnify and hold harmless" the service provider. Which is why, as a sender, instead of doing the simple thing of attaching a PDF to an email, I do one of the two following things: (1) when I am in control of the relationship, I upload a PDF to a server that I control, send a text message and email to the recipient with a link to the PDF, and use logs from my web-server to have proof of actual notice. I follow up with a phone call (synchronous communication, as you mention) if I need actual notice. And sometimes I get written, wet ink confirmation of receipt, to nip in the bud every possible claim that they did not notice. (2) when an opposite party is in control of the relationship (typically: I act for a debtor and communicate with a creditor; or I act in a contract negotiation), I send a fax. The 250-equivalent that I receive from the opposite's party is notice (knew or should have known), and saves me all the hassles of confirming actual notice (or READ, in your examples). | the fax acknowledgement does not normally guarantee that the fax | machine does not feed directly into a shredder or incinerator, or | simply that there wasn't a fatal paper jam or ink mishap in the fax | machine's printer. What the fax ack does "normally" guarantee is that the recipient has notice and can call back to ask for a re-sent in case of an accident, and cannot get away in case of intentional ignorance. There is still a margin of uncertainty (e.g. fax device destroyed in a fire; or sender not providing a valid fax number in the transmission). From a legal point of view, liability can still be reasonably allocated (e.g. fire insurance, or sender for not providing a valid sender number). The really good fax devices time-stamp each individual page of the transmission, so if there was a deadline, pages that arrived after that deadline do not count in the legal process. | However, the fact that fax acknowledgements are generally considered | reliable is largely a consequence of laws like the US TCPA (and the | abuses prior to regulation.) "Generally considered reliable" is mere comfort. The real and hard value of fax ack is that for the purpose of allocating legal liability, they are *deemed* reliable and *enforced* by the legal system, whether it is the Common Law, or a code created by a legislator such as US TCPA. This is what makes the fax, on this one particular aspect, superior to internet email. I wish internet-email would achieve superiority, or at least parity, over fax. I do not hold my breath, and this is the problem of the federated protocol: without participants agreement (ITU in the case of fax) federated protocols generally fall apart as each party pulls for its own interest instead of the common interest, and we all fall back on the least common denominator. text messages work better than internet email because the telcos make tons of money from servicing highly regulated, scarce (artificially) phone numbers, as opposed to internet email service providers that fight an uphill battle against the infinite supply of domain names and email addresses. > your glorified fax Careful. I am not glorifying the fax or anything, but you are antagonizing me with the above allegation. Here is one math problem for you to solve, and you tell me if you come to the same conclusion that I do, which is why I use the fax so much. You work for home buyers that need mortgages. You need to receive mortgage instructions from the lender. The lender gives you two options: (a) use a proprietary platform that requires use of Internet Explorer (no Edge, no Chrome, no Safari, no Firefox) and Adobe Reader. A typical fee of $30/mortgage is charged to you/your client (b) use a fax; for which you/your client cover your side of the expense (receiving and, if necessary, printing). Add to the scenario that: * a typical mortgage is in the range of 10-20 transmitted fax pages (standard documents are made available by the lenders on their websites, only specifics to each deal are faxed) * the cost range of a bidirectional fax to email gateway is in the $0.03-$.10/page * there are multiple lenders and a few proprietary platforms, each with its own quirks and learning curves * A small law office working full time on these kinds of mortgage transactions will do 15 to 20 per month. I receive my faxes as PDF. The fax gateway to internal email is reliable. I automate processing of those PDF. OCR if needed. Extract pages and overlay text (complete forms) out of my database. Overlay signatures or present to clients for wet ink signatures. Fax back, making sure that all deadlines are met and that the other party has legal notice. I wish I could skip the fax gateway and use internet email directly. With a few of the lenders it works, but it is up to the contractual agreement of the parties. This is during sunny days. Imagine when things go wrong, and allegations start to fly. > No asynchronous communication method will guarantee you that [the > recipient has actually READ your mail] I am not expecting the middle-man, whether a human, a corporation, or a piece of hardware or software, to guarantee anything in respect of the recipient. All that I expect is that it does a "best effort" to deliver the message to the next hop (may not be the end recipient) and does not misrepresent to the sender that it has delivered on its effort. A 250+silent drop does not cut it. And since I am expecting that of others, I am expecting that of myself as well, which is why I came here for a technical solution on how to let Google know (and I am not singling out Google) that their calendar reminder have been REJECTED, without retaliation from Google (stop sending you all emails), without lying to Google (250+discard) and trying to promote a healthy internet email federation. If we do not act ethically with one-another, our federation will die and the walled gardens of the telecoms will prevail. AOL or Compuserve, anybody? Back from lunch break, -- Yuval Levy, JD, MBA, CFA Ontario-licensed lawyer https :// moneylaw.ca
