Telcos, ISPs surprised over provisions in lawful intercept legislation

Communications service providers are criticizing certain provisions of proposed lawful intercept legislation introduced into the House of Commons last week. Bill C-74, sponsored by Public Safety and Emerg-ency Preparedness Canada (PSEPC) and read into the House on November 15, aims to modernize wiretapping laws that are decades old and don’t take into account the use of new technologies. While industry players accept much of the bill as a step in the right direction, they note that some of the provisions in the proposed legislation were totally unexpected. Two of particular significance are the transition year proposed for large communications service providers (CSPs) and the introduction of a sunset clause for small providers to come into compliance with the bill. David Elder, VP of regulatory law at Bell Canada, tells Network Letter that the one-year transition plan as proposed in Bill C-74 doesn’t make sense. "We thought that once the bill came into force we would have a year before we actually had to put any equipment into play that would have lawful access capability, and that would allow us to do our usual long-range planning," he says. Any new piece of equipment, a switch for example, that was installed after the bill was passed but during the one-year transition phase would "effectively be grandfathered and be treated like all your other in- ground equipment," he adds. "What it does instead is it gives us a year where the Act doesn’t apply to new equipment that we put in during that year, but when the year is up we have to retrofit all that equipment, which is worse. We thought we would really get enough of a heads-up because our obligations are not going to crystallize until this legislation is actually passed," Elder says. The telco is also unhappy that the government expects service providers to pick up the tab for adding lawful intercept capabilities to networks. "We see this as a downloading of policing costs onto a particular industrial sector, and I don’t think that’s appropriate," Elder says. "Policing is certainly a concern, but it’s a public good. It benefits all Canadians and all citizens and it would be more appropriate to fund that out of general tax revenue than putting that onto service providers and, therefore, onto the particular users of those service providers." Recent events raise questions about C-74: If the writ is dropped and this Parliamentary session is closed, will the bill come back in the same form when it is reintroduced? And what changes, if any, will be introduced and adopted at the committee stage? The bill is likely to go to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness after second reading. "So, we’re not really in a position to know what our true obligations are going to be until the legislation passes," Elder states. "Then we’re going to need some time to be able to ramp up." He adds that telling providers that they have to retrofit their equipment after the fact is "costly and counterproductive." Alicia Wanless, an analyst with the SeaBoard Group, says the cost won’t be insignificant for service providers. "Our estimate is that the deployment of next-generation lawful intercept capability will cost the industry over $50 million. We think this may be an undue burden to the industry – an indirect tax, in essence. If the federal government wants the capability, however, $50 million should be an affordable cost for it to bear," she writes in an email to Network Letter. Small telecom providers and ISPs are also going to feel a financial pinch if this bill is passed without changes. The bill introduces a sunset clause of three years requiring small providers to come into compliance with lawful intercept capabilities. During a briefing for the industry on November 15, government officials said they expected that within three years all communications equipment would come integrated with lawful intercept capabilities, therefore, the exemption for small providers wasn’t required. Canadian Association of Internet Providers (CAIP) president Tom Copeland says the sunset clause provision "was not something that had been discussed" during the consultation process. "It’s a bit of a concern to us because it’s not going to be inexpensive for small providers to make those changes," he tells Network Letter. Highlighting the impact on his own ISP business in Cobourg ON, Copeland says, "If I add any gear to my network, whether it’s on the LAN or Internet side of things, in three years time, they have to comply with the requirements." It’s still too early to discern the precise financial impact of this bill on small ISPs until the regulations are made available. "It’s surely going to impact the business case, but we won’t really know unfortunately until we see the regulations…If all is an Ethernet port on our main switch or our main router, most of us can do that now, but if it goes beyond that we don’t know," Copeland says. Elder agrees that a lot is still up in the air until the regulations become available. "The government has indicated that they think those regulations and some of those other documents will be available and will be ready by the time goes to committee, but we don’t have them now, so it’s pretty difficult to give a full assessment on the impact of the bill," he says. Wanless notes the lack of clarity in the bill should be a cause for concern. "It would be better if the bill included a clear framework that described how lawful intercept should be carried out, the standards that need to be met, the technologies employed. A framework with acceptable standards for interception and transmission would surely lessen industry disquiet – as it stands, nobody knows how much the operations costs of lawful intercept could be. "What if every police jurisdiction adopted different standards? Would the carriers need to interoperate at their own expense, with everyone? A framework would offer a clearer idea as to what operational costs could be expected. You would be able to hear the sighs of relief in corporate boardrooms," she writes. Elder also expressed concern that the proposed legislation doesn’t address the operating costs of lawful intercept. "The resources, human and otherwise, that we expend in carrying out warranted activity and other things for law enforcement…it’s not clear how we get compensated. Elec-tronic surveillance and production orders of log data are becoming more and more frequently used investigative tools. Again that’s something else as an industry we would be on the hook for," he explains. Some good aspects to the billFrom the providers’ perspective, the proposed legislation doesn’t appear to trample on the privacy rights of individuals. There isn’t a provision requiring mandated data retention and if providers don’t retain certain data, they won’t be required to do so, according to Elder. "We think that’s a good thing, and I would think most privacy advocates would think it was a good thing," he says. There could be some debate about the requirement to provide subscriber information to law enforcement agencies without a warrant – data such as name, address and other identifying information. "There is a bit of debate about whether that does trample on privacy rights or not," Elder says. "Our view is that particular provision is a fair balance of privacy rights and the need for law enforcement to have some basic identifying information. "A lot of times service providers are caught between our CRTC privacy obligations and our obligations under PIPEDA (Personal Information Protection and Electronics Documents Act), and the demand of law enforcement…In fact, in many cases service providers desire to do the right thing. In cases of child exploitation, police officers will ask to have identifying details about a particular user and in many cases service providers would like to comply, but right now would be violating CRTC and federal privacy restrictions," he explains. "This would clear that up. It would provide a clear statutory obligation that we would have to deliver up." Wanless regards this as a potential concern, but notes the bill contemplates safeguards for potential abuse. "The bill does seem to outline a concise reporting/auditing of all such information requests which suggest that this privilege would have some safeguards against abuse. We await release of draft regulations to see how this will work," she writes. It’s unlikely the bill will become formal legislation before Parliament is prorogued – expected within the next week or so. It’s anticipated a non-confidence motion to bring down the governing Liberal Party of Canada will be introduced on November 24 on which a vote will be held on November 29.

Telcos, ISPs surprised over provisions in lawful intercept legislation

News | November 23, 2005

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