Providing for Notice by Email (Including Information About RPost)

Not satisfied with having prompted my recent foray into fax terminology, reader David Baghdassarian posted to that item the following comment on providing for notice by email:

As for email notices, the problem I have is that there is too much room for an email to inadvertently be deleted or overlooked, email server to crash, email to be stuck in a spam filter, lost in cyberspace, never sent due to some weird system error, etc. for me to allow for its use as a method of notice at this time. I have allowed for email to be used to provide periodic financial reporting that may be required under an agreement simply for convenience, but for notices of default and the like, delivery of email to a recipient and proof of its receipt is not yet reliable enough for me. And I am a techno-geek who was previously a system administrator. (Maybe that’s why I am so averse to email—I know what can happen to it in transit and how emails and email receipts can be altered.)

I suspect that many readers would endorse David’s take. But let’s look at this further.

My preferred form of notices provision states in one subsection the one or more methods that the parties may use to deliver notices to each other, and it says in another subsection when any given notice would be deemed effective. You’d use the latter subsection to mitigate the risk of a given notice somehow going astray.

So if you provide for notice by email, you could mitigate the risks posed by the problems David mentions by specifying that an email wouldn’t be deemed received unless the receipient were to acknowledge receipt.

But what kind of acknowledgment? Users of Outlook and, I gather, some other email applications could rely on a “read receipt” requested by the sender. A read receipt is a notification that the receiving email client (a technical word for a kind of computer application) sends to the sender of an email as soon as the recipient opens the email, marks the email as read, or deletes the email without opening it.

But read receipts are problematic. As noted on Wikipedia, requesting a receipt doesn’t guarantee that you’ll get one: not all email applications support read receipts, and users can generally disable that function. Failure to receive a read receipt would require the sender to deliver notice by some other means; it wouldn’t pose any risk for the recipient. But it would be a problem for the recipient if a read receipt were issued for a given message even if it hadn’t been read. That apparently does happen: according to Microsoft Support, “Regardless of the options you select, some e-mail servers will never return a receipt and others may always return a receipt, regardless of whether or not the message has been read.”

So if you provide for notice by email, say that an email notice would be effective only when the receipient acknowledges receipt, and don’t specify that receipt of a delivery status notification in response to a read receipt constitutes acknowledgement. In fact, you might want to make it clear that it doesn’t constitute acknowledgement. Here’s some prototype language:

A notice or other communication under this agreement will be deemed to have been received as follows: … if it is delivered by email, when the recipient, by an email sent to the email address for the sender stated in this section X or by a notice delivered by another method in accordance with this section X, acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this section X; …

Obviously, this language would allow the recepient simply to ignore any email. That’s why you wouldn’t want to make email the only means of delivering notice. I have in mind that email would be the quickest and cheapest way of giving notice, with FedEx as a backup in case a message disappears down a cyberspace black hole or the receipient refuses to cooperate. Trying email first shouldn’t cost the sender anything, in time or money: if after a couple of hours the receipient hasn’t send an email acknowledging receipt, you could send the notice by FedEx. To increase the odds of an email acknowledgment, the sender should call the recipient to alert them to the email.

What I wouldn’t want to do is specify that email notice would be effective only if the sender sends the recipient by regular mail a copy of any email. That would be cumbersome.

As noted by Chad in a comment to the post on fax terminology, any email address specified in a notices provision should be a generic one. And contract parties should put in place systems to make sure that any emails sent to that address are quickly read and routed to the appropriate persons.

To summarize, I think that if you provide for acknowledgment as described above, giving notice by email becomes entirely feasible. At any rate, notice provisions that contemplate email notices are easier to find than when I last checked, around three years ago.

The above discussion relates to potentially sensitive notices. But if, as David noted in his comment, a contract provides for the parties to exchange commercial information in the ordinary course of business, it would make sense to provide a separate, more relaxed regime for how that information is to be exchanged.

By the way, I prefer email over e-mail. The New York Times prefers e-mail, but if email is good enough for Google, it’s good enough for me.

[Update: Thanks to comments to this post, I learned about RPost. (I guess I’ve been living under a rock!) It appears that if the sender uses RPost when sending an email, that removes the uncertainty as to whether the recipient actually received the email.

But how might that affect contract language? Perhaps the simplest thing to do would be to specify that the only kind of email notice that is permitted is email using RPost. Regarding when an email would be deemed effective, here’s some language you could use (I used a couple of concepts included in some model language that RPost was kind enough to send me):

A notice or other communication under this agreement will be deemed to have been received as follows: … if it is delivered by email and the sender uses RPost, when the authorized electronic mail agent of the recipient accepted that email message, with the delivery status of at least “delivered to mail server,” as stated in the RPost “Registered Receipt” received by the sender with respect to that email message; …

Or you could have two different standards, one for email with RPost, one without, but that might be overkill.

In any event, this is new stuff. I’m open to suggestions.]

Posted in Uncategorized | 20 Comments

  • http://www.firstdrafter.com D. C. Toedt

    I can think of two different notice situations that might need to be handled differently.

    First is the “custom” notice, being sent to a single party. One approach to that situation is not to specify any particular delivery method, but instead to provide simply that notices are effective upon receipt, with the burden of demonstrating receipt being on the sender, period. In this day and age, there are a variety of notice vehicles that can provide evidence of receipt (certified mail, FedEx, etc.). One can argue that for “custom” notices, it’s the sender’s job to decide what kind of evidence of receipt might be needed someday, and to proceed with whatever delivery vehicle s/he thinks will do the job.

    The second situation is where a party must send out notices to many counterparties, e.g., in consumer contracts. For those, the usual verbiage about “effective X days after being placed in the U.S. Mail, first-class postage prepaid” might be necessary.

    So whether to expressly specify email for notices, and in how much detail, may depend on which of these situations you expect to encounter.

  • Art

    I agree that it depends on context.

    In most contracts, the email must be sent to a specified email address, and in most contracts I deal with the notice is effective if the email is sent to that address, regardless of acknowledgement or actual receipt. However, these are all large institutions with well-established systems and polished IT, who believe that the risk of an email going astray with no bounceback message is effectivelyincreasing the admin for. I would have the same reservations as Ken with smaller clients.

    The drafting could equally keep the risk with the sender, but as the sender in our contracts tends to be the client of the receiver, it never seems to work that way…

  • http://www.ixio.com Martin

    if you use http://www.rpost.com, then you can get a proper receipt.

  • http://www.blspeer.com Brenda Speer

    I do not find notice by email to be problematic. For notice language, regardless of methodology, I use language requiring proof of delivery by the sender.

    There are programs available to track and authenticate delivery of emails. I use RPost (www.RPost.com) for this purpose; it’s registered email and is admissible in court. You can send an email directly from your email client via RPost and it will track and report when RPost got the email for delivery; when the email was delivered to the recipient’s email server and when the recipient opened it. It’s much less expensive than courier or certified postal mail. See the legal opinion RPost got re: the service: http://tinyurl.com/d8hetw.

  • http://www.rpost.com Alex Khan

    For those not familiar with RPost — the service that “Martin” mentions above, I provide a short synopsis as follows: RPost’s core Registered E-mail® service provides the sender legally valid and court admissible evidence of e-mail correspondence occurring from the sender’s desktop e-mail — or directly from applications – to the recipient. RPost returns to the sender in the form of a verifiable Registered Receipt e-mail, evidence of official time sent and received as well as content (message body and attachments) of any e-mail, without requiring the recipient to download any software, click links, or visit special websites to open and read messages. The RPost system operates at the underlying Internet protocol and server level, recording the transmission metadata and then analyzing and interpreting this data for the sender and placing the result in the receipt. This receipt, if authenticated, will also re-construct the validated original message content and transmission metadata – importantly, without the RPost system storing any e-mail messages.

    Available in eight languages and for all e-mail platforms, RPost’s Registered E-mail® services have been granted 20 patents, have been used daily by the United States Government since 2003, and have been endorsed and marketed by most of the influential bar associations in the United States, including the bars of New York City, Chicago, Los Angeles, Boston, and the District of Columbia. RPost offers additional services, such as eSignOff™ which enables a one-click-signoff-by-email with an evidentiary record of the signoff provided to both parties that has evidential weight equal to “wet-ink” signatures on contracts– eliminating the print/sign/scan/fax/mail signoff process. The complete RPost platform is offered at a flat per e-mail price, which is about the cost of a postage stamp and only a small fraction of typical courier charges. More information and legal opinions are available at http://www.rpost.com.

  • http://www.realtor619.com Jim

    My wife is a Realtor in Southern California and she uses RPost Registered E-mail daily when sending important email to her clients when she wants proof or even when she needs something signed electronically. Our insurance agent has sent us RPost Registered E-mails as well. Useful tool!

  • http://www.tklaw.com Paul Comeaux

    I wonder if RPost works with Twitter. (Anyone allowing Twitter as a notice option?)

  • Ken Adams

    Paul: I think I feel ill … Ken

  • JA

    What about just dumping the notices section altogether in many contracts? The litigators at my firm always say that the parties know how to get in touch with each other.

  • http://www.haynesboone.com Jim Brashear

    I tend to disfavor naming a particular vendor or technology as a method of establishing that delivery occurred. If the contract states delivery is evidenced by a FedEx receipt, does that mean a UPS receipt is not sufficient? What happens when, 5 years into the contract term, RPost no longer exists or is re-branded? If RPost is supplemented by equally-effective methods or is superseded by better methods, the contract should allow the sender to use those methods.

    I tend to agree with Art. The contract could allow for delivery by any method that positively establishes receipt. The sender can bear the risk of what method (or multiple methods) should be chosen in the context of the significance of the notice.

  • Ken Adams

    Jim: You’re right. If one wanted to be thorough about it, one would provide for notice both with and without RPost. But having RPost on the scene is sufficiently novel that I’d want to think it over. Ken

  • Zak

    I am suspicious of the usefulness of RPost. However, I’m not up to date on electronic communication laws, so it may be a failing on my part.

    As I understand it, what you want is proof that the email was delivered to the recipient such that they could reasonably be expected to open it. You really can’t do that without examining the receiving server.

    (By “reasonably be expected to open it”, I mean that, if you put “Buy C!al!s” in the subject, it’s going to get caught by a spam filter. I think you would be hard-pressed to establish that as sufficient notice.)

    The most foolproof way is to demonstrate that the recipient actually opened it. However, even RPost admits it’s not infallible at that:
    The RPost System can determine when an e-mail was opened MUCH of the time using a variety of techniques, but no system can determine when an e-mail was opened ALL of the time. This is why RPost provides four levels of delivery: Failure, Mail Server, Mailbox, or Opened. The RPost System reports the level of delivery that it can be certain has occurred:
    http://www.rpost.com/site/faq/faqs_registered.htm

    I have a feeling they use a tracker image to detect opening, like many companies do. Basically, it’s a graphics file on RPost’s server that has a unique identifier that is tied to the email they sent you. Since you are the only one to get that image, and it was only sent in that email, they can monitor whether that graphic was accessed to determine whether it was opened. If you have images blocked, it won’t know that you opened the email.

    The next best is to prove that it was received in their actual Inbox on the server. However, despite what RPost claims, my understanding is that this is not possible to determine unless you look at the receiving server. RPost acknowledges that they do not do anything out of the ordinary on the receiving end. If anyone has any more information on this, I’d love to look over it.

    That leaves proving it was received by the server, which doesn’t really prove anything about whether the recipient actually received it. That said, I’m not familiar with the case law on whether that is sufficient (e.g., like the mailbox rule).

    So, if simply proving that the recipient’s server got the message is sufficient for notice, then I can see how RPost’s system would work. Otherwise, I’m skeptical.

  • Alex Khan

    It has come to our attention that there have been some questions about what is deemed as “legally received” for e-mail. As a courtesy, we thought we would direct you to a legal opinion prepared by Locke Lord Bissell & Liddell that goes into detail, mapping to the Uniform Electronic Transaction Act and case law — and is worth a quick read.

    http://www.rpost.com/update/files/rpost_authentication-admissibility_review_2007.pdf

  • Mel

    I would like so see a function like seen at http://www.rewpost.com where they store email for later proof of delivery.

  • B Hare

    RPost it seems to me has established that their receipt is “legal receipt”, at least as defined by e-commerce laws see their web site:http://www.rpost.com/site/value/value_case_studies.htm in the legal opinion section

    In addition there is a level of delivery that is “nice-to-know”…(opened, mailbox). It seems that RPost analyzes information from a variety of techniques and considers all of the data associating content with official times. That is value: approaching as far as I know the highest level of known “delivery” possible (at least legal delivery) adding to verifiable proof of content, time sent and legally received. What RPost provides should exceed most expectations or needs most of the time no?.

  • http://www.rpost.com frank maguire

    For purposes of electronic law in US, legal delivery occurs when it can be shown that e-mail leaves the sender’s server and is accepted by the reciient’s server. RPost takes a snap-shot of the server-to-server conversation that occured in the delivery process described. That recorded digital communication is encrypted, attached to a Registered Receipt that is sent by e-mail to the sender for safekeeping as RPost does not store e-mail information. RPost maintains the key necessary to unlock the encrypted transmission information should a dispute arise after-the-fact and proof of the original content of both e-mail and attachments is needed. To make this happen, the sender returns the Registerd Receipt to RPost where it is unlocked and RPost regenerates the original e-mail and attachments from the un-encrypted digital “snapshot” that recorded both content and transmission record, and returns same to sender. While legal proof test is server-to-server, RPost farms the highest level of information available from the recipient server and will report back to sender the e-mail’s status all the way to “opened / read” whenever possible – sometimes days or weeks after the initial delivery. Servers do not all speak the same language and do not always share the same expanded level of delivery status beyond “received by server.” RPost service is unique in the market given that it is considered to be “recipient agnostic.” Meaning that the recipient is not forcd to take any compliant action to retrieve / open Registered E-mail or install software or employ keys or passwords. The returned Registered Receipt is generated and sent back to sender autmatically regardless of any action or lack of action on the part of the recipient. In fact, a recipient is unable to prevvent the Registerd Receipt from being returned to sender as the transaction occurs at the server level.

    • SouthAfricanPatriot

      Its enough proof for delivery of email notice when you don’t receive from recipient’s address anything to the contrary like errors.

  • B Hare

    Well today we have the National Association of Postal Supervisors Ted Keating pointing out that “UPS and FedEx revenues are falling faster than Postal Service revenues”. We know that dead tree newspapers are disappearing as electronic news spreads wider. Express mail has been lucrative for the providers FedEx/UPS/DHL but they are watching their markets evaporate. Can it be that RPost is giving email the superior features to UPS/FedEx/DHL’s express mailing of envelopes (the ability to record the entire contents of the missive – and not just the ability to track and trace the arrival of an envelope)? …..RPost might be a significant factor in the impending demise of much of the express mail business.

  • B Hare

    and now below see Megan McArdle’s March 2 2110 blog comment about the Postal Service:(Business and Economics editor of the Atlantic Mag)……………..
    She writes:
    “Futhermore, things like our legal system have become very dependent on the mail system, which allows us to legally serve notice and so forth.”

    um how much longer before email ( with legal notice of service) really does replace the need for the Postal Service?

    —————————

    Going Postal
    Business Mar 2 2010, 1:06 PM ET Comments (138)
    According to the Washington Post, “The U.S. Postal Service estimates $238 billion in losses in the next 10 years if lawmakers, postal regulators and unions don’t give the mail agency more flexibility in setting delivery schedules, price increases and labor costs.” The author, Ed O’Keefe, can’t quite bring himself to say it, but the post office as we know it is becoming increasingly untenable. What do we do with the wreckage? Small-government types may be disappointed to hear that the answer is not “privatize it”; virtually no one thinks that there is a viable business model trapped inside the aging behemoth. Every time the relative efficiency of government services comes up, some conservative brings up the damn post office, and then some liberal tiredly points out that priority mail is cheaper than any comparable service from the Post Office. It’s not exactly surprising that the post office can undercut UPS prices with $23 billion a year in government subsidies. The question is, do we get $23 billion in extra value? Arguably, we used to. Mail, like other forms of communication, has network effects–each node becomes more valuable as you add more nodes to the network. Arguably, it was a natural monopoly with capital costs that were best handled by the government. Futhermore, things like our legal system have become very dependent on the mail system, which allows us to legally serve notice and so forth. But as has been noted elsewhere, mail is largely becoming an anachronism–I barely even get my bills that way any more. Mostly, I get catalogues, Christmas cards, and the occasional invitation to a wedding or baby shower–not $23 billion worth of service. Probably not even worth my per-capita share of the postal service, which if my math is correct, works out to about $75 a year. And then, of course, babies and small children neither receive much mail, nor pay much in taxes. So call it $100. Would you pay $100 a year for the privilege of getting mail? Yeah, me neither. You can’t even downsize the thing to the parts that work–the parts that are most valuable are the really expensive, broadly distributed network of post offices and employees. This is the part that Congress won’t let die, and which will never be able to pay for themselves. We remain emotionally attached to our post offices, and postal workers remain emotionally attached to their jobs, and congressmen remain emotionally attached to their votes. So the post office will probably hang on for another one or two decades, becoming more and more irrelevant, and sucking up more and more in the way of public funds. Hope you all like those Christmas cards.

  • http://datecorrected2010 B Hare

    and now below see Megan McArdle’s March 2 2010 blog comment about the Postal Service:(Business and Economics editor of the Atlantic Mag)……………..
    She writes:
    “Futhermore, things like our legal system have become very dependent on the mail system, which allows us to legally serve notice and so forth.”

    um how much longer before email ( with legal notice of service) really does replace the need for the Postal Service?

    —————————

    Going Postal
    Business Mar 2 2010, 1:06 PM ET Comments (138)
    According to the Washington Post, “The U.S. Postal Service estimates $238 billion in losses in the next 10 years if lawmakers, postal regulators and unions don’t give the mail agency more flexibility in setting delivery schedules, price increases and labor costs.” The author, Ed O’Keefe, can’t quite bring himself to say it, but the post office as we know it is becoming increasingly untenable. What do we do with the wreckage? Small-government types may be disappointed to hear that the answer is not “privatize it”; virtually no one thinks that there is a viable business model trapped inside the aging behemoth. Every time the relative efficiency of government services comes up, some conservative brings up the damn post office, and then some liberal tiredly points out that priority mail is cheaper than any comparable service from the Post Office. It’s not exactly surprising that the post office can undercut UPS prices with $23 billion a year in government subsidies. The question is, do we get $23 billion in extra value? Arguably, we used to. Mail, like other forms of communication, has network effects–each node becomes more valuable as you add more nodes to the network. Arguably, it was a natural monopoly with capital costs that were best handled by the government. Futhermore, things like our legal system have become very dependent on the mail system, which allows us to legally serve notice and so forth. But as has been noted elsewhere, mail is largely becoming an anachronism–I barely even get my bills that way any more. Mostly, I get catalogues, Christmas cards, and the occasional invitation to a wedding or baby shower–not $23 billion worth of service. Probably not even worth my per-capita share of the postal service, which if my math is correct, works out to about $75 a year. And then, of course, babies and small children neither receive much mail, nor pay much in taxes. So call it $100. Would you pay $100 a year for the privilege of getting mail? Yeah, me neither. You can’t even downsize the thing to the parts that work–the parts that are most valuable are the really expensive, broadly distributed network of post offices and employees. This is the part that Congress won’t let die, and which will never be able to pay for themselves. We remain emotionally attached to our post offices, and postal workers remain emotionally attached to their jobs, and congressmen remain emotionally attached to their votes. So the post office will probably hang on for another one or two decades, becoming more and more irrelevant, and sucking up more and more in the way of public funds. Hope you all like those Christmas cards.