Telecom Carriers and Privacy: “Collateral Damage” in the War on Terrorism?

David Elder, assistant general counsel at Bell Canada, made this presentation at the New Developments in Communications Law and policy conference in Ottawa in April. Excerpts of the paper follow. A copy of the entire document is available here. Certainly, the long-standing Parties to Offences provisions of the Criminal Code may already expose to liability third parties that do not actually commit an offence, but may aid in the commission of an offence or encourage its commission, or may act as an accessory after the fact. However, these sections impose a high standard that the person aiding, abetting or acting as an accessory did so with a clear intention of assisting or encouraging an offender or the commission of an offence. For example, the general "aiding" provision of the Criminal Code states that every one is a party to an offence who does or omits to do anything for the purpose of aiding any person to commit it. It is difficult to imagine a situation where a telecommunications common carrier, in the ordinary course of business, would be found to have aided a person in committing an offence merely through provision of telecommunications services in the customary manner, even if an employee of the carrier was inadvertently aware that the service may have been used in support of an illegal activity. This may be in marked contrast to the new anti-terrorism provisions of the Criminal Code. As will be seen below, unlike the rather oblique application of the aiding and abetting provision to other offences under the Criminal Code, the terrorism offences created by the Anti-Terrorism Act may impose criminal liability on telecommunications service providers for merely providing the services that they offer in the ordinary course of business. While it would be difficult to characterize the commonplace provision of a telecommunications service as an act done for the purpose of aiding a person to commit most of the established Criminal Code offences; the new anti-terrorism provisions of the Code appear to take much more direct aim at the behaviour of third parties, given the number of offences which focus on providing, making available, using or possessing "property." The latter term is defined in extremely broad terms, and many of the property-related offences could apply with respect to property owned by a third party, such as a telecommunications service provider. he ATA creates several new offences and obligations that are cast in very broad terms. The breadth of the language used may not only bring ordinary telecommunications service providers within the ambit of offences that were clearly targeted at groups and organizations with real terrorist connections, it may also make it impossible for such service providers to develop a reliable compliance program to implement the legislation, due to the uncertainty respecting imputed knowledge and reliable indicia of terrorist activity. However, it is clear that they must do so. Due diligence is required of telecommunications service providers to ensure that their property, including network components, is not being used in furtherance of terrorist activity. In order to avoid criminal liability, as well as negative publicity and diminution of goodwill in an intensely competitive market, they must avoid any actions that, together with imputed knowledge of such activity, would constitute an offence. Even with long-established offences, there are many cases before Canadian courts in which it is unclear whether a particular activity is illegal until a judge makes an explicit finding as to the scope and application of the offence in question. It is submitted that the anti-terrorism offences discussed above - which as yet do not have the benefit of judicial consideration - would effectively require telecommunications service providers to make regular determinations as to whether they are serving terrorist groups, or whether their facilities are being used to further terrorist activity. Worse, they would have to do so with the knowledge that an error could expose the provider to civil liability (if action, such as disconnection or suspension of service is taken against what turns out to be a non-terrorist) or criminal prosecution (if a terrorist activity or terrorist groups is not properly characterized as such).

Telecom Carriers and Privacy: “Collateral Damage” in the War on Terrorism?

News | May 7, 2002

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