Communications law and policy conference –Duty to disclose provisions of terrorist law subject to intense debate at session

The obligation of telecom carriers to report suspicious activity under the government’s recent anti-terrorism legislation was a matter of dispute at a recent communications law conference in Ottawa. Some worry that onerous duties are being placed on the telcos, while the government maintains the law is aimed solely at terrorists. On April 26-27, the Law Society of Upper Canada and the Canadian Bar Association co-sponsored the New Developments in Communications Law and Policy conference. One session featured a paper presented by David Elder titled Responsibilities of Telecom Carriers and ISPs in a Time of Crisis, and rebuttals by two other attorneys. Elder, assistant general counsel at Bell Canada, has been at the forefront of the debate, having written material on the effects of Bill C-36, the Anti-Terrorism Act (NL, Mar. 25/02). At the conference, he discussed the "duty to disclose" provisions of the legislation. Under the new law, carriers must inform police authorities if they learn of terrorist activity on their networks. This could apply to wireline, wireless, or Internet communication. Failure to disclose could lead to criminal penalties. The duty to disclose applies to all Canadians, whether they live in the country or not. The legal definition of Canadian encompasses corporations as well as individuals. Elder postulated that a Canadian-incorporated telecom company providing service outside the country would be obligated to turn information over to Canadian police. "The Anti-Terrorism Act may – perhaps unintentionally – expose telecommunication service providers to criminal liability with respect to well-established and previously accepted behaviour that is undertaken in good faith, such as the ‘don’t ask, don’t tell’ approach to non-service related customer information and transmission content," Elder’s paper states. Elder told the conference that Bell has been working with front-line employees, technical support staff and others to inform them of their responsibilities under the new legislation. He offered a few guiding principles for implementing the law. The cost of upgrading networks to make data collection possible should be on a cost-recovery basis, and material should only be held for normal periods of time, he maintained. Paul Saint-Denis, senior counsel in the department of Justice’s criminal law policy section, countered that the bill was never intended to snare carriers. The focus of the law is to catch terrorists. "We wanted to meet our international obligations with this legislation, but we tried to balance protection against the Charter of Rights and Freedoms," he told conference delegates. He presented the options as quite cut-and-dried. If a carrier learns of terrorist activity, service should be suspended and authorities notified. If the carrier were unaware of illegal activity, the government would be unlikely to prosecute. Lisa Austin, an assistant professor at the University of Toronto’s law faculty, raised the spectre of telecoms violating the privacy of their subscribers by handing over information to police. What would the consequences be if a telco or ISP suspended service to a customer based solely on suspicion, rather than hard fact, she asked. Elder referred to that notion in his paper. "It is submitted that customers of such carriers expect that carriers will not become involved in or generally have access to the content of messages, and will not collect, use or disclose customer information beyond that reasonably required to provide the telecommunications services in question," the paper states. For more on this topic, see the Newsmakers column in this issue and the April 30/02 edition of Report on Wireless.

Communications law and policy conference –Duty to disclose provisions of terrorist law subject to intense debate at session

News | May 7, 2002

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