Lawful access bills lack clarity on compensation, telcos say

Telecom companies say they are concerned the federal government’s new lawful access legislation will require them to provide a more extensive range of services to law enforcement agencies without proper compensation. “There’s some movement towards compensating for costs, but there’s still not a whole lot of clarity around what kind of compensation would be made available,” Keith McIntosh, director of regulatory affairs at the Canadian Wireless Telecommunications Association (CWTA), said in an interview. On Oct. 29, the Conservative government introduced Bill C-50, which would allow law enforcement authorities to intercept private communications online under “exceptional circumstances.” The new bill was quickly followed by the introduction of Bills C-51 and C-52 on Nov. 1, which would extend police investigative powers from telephony to all means of telecommunications, and require telecom providers to put in place the necessary infrastructure to comply with the new laws. The so-called “lawful access” bills are the latest versions of bills C-46 and C-47, which died in the last Parliament when the House prorogued. They are intended to provide law enforcement authorities with online intercept powers and access to ISP customer information for criminal investigations. But telecom service providers say the costs associated with complying with the law will be substantial. “Some people, including some law enforcement folks, think it’s just a matter of flipping a switch or a few key strokes, and we have all this available to us. But in a lot of cases that’s just not true. Some financial assistance in providing them with what they want just makes a lot of sense,” Tom Copeland, chair of the Canadian Association of Internet Providers (CAIP) and president of Internet service provider (ISP) Eagle.ca, said in an interview. Copeland said the costs will include initial capital expenditure costs, ongoing system maintenance fees, plus the labour costs of capturing the requested information, storing it, and making it available. He added that the costs associated with complying with the new bills will depend on the size of the ISP and what equipment the company has in place. “But it’s going to be fairly onerous for all sizes, regardless of what they might already have in place because my understanding is what’s being sought is expanded capacity to do these intercepts, and it doesn’t matter whether you’re an incumbent telco or a small rural provider. Your current capabilities are probably limited and there’s going to have to be an investment of some sort,” he said. Bill C-52 provides a broad framework for compensation. The bill says federal law enforcement agencies must pay the service provider “an amount that the Minister considers reasonable towards the expenses that the Minister considers are necessary for the service provider to incur initially to comply with an order made under this section.” The bill also says service providers are entitled to a “prescribed fee” to be paid by non-federal law enforcement agencies. The Department of Public Safety may also provide the service provider with any equipment needed to comply with the legislation. Ted Woodhead, Telus Corp.’s vice-president of telecom policy and regulatory affairs, said the company supports the new legislation, but would like to see additional clarity on the compensation regime. “What has been a concern of ours and others in various iterations of this bill is the lack of clarity around compensation for processing ,” he said. “This is underscored in the latest iteration of the legislation, because rightfully, the law enforcement officials are looking for new forms of network communications … and while we’re supportive of this, the work required once we’ve received a lawful access request is higher.” The details of the compensation regime will be released in government regulations following the passage of the bills, and the CWTA and Telus said they are interested in commenting on the draft regulations. “In the normal course we would hope that the government would afford that opportunity, and our understanding is that they will have consultations on those ,” Woodhead said. Bell Canada spokeswoman Jacqueline Michelis said in an email that the company is also concerned with the costs associated with the new bills. Rogers Communications Inc. was not available for comment Friday. But the compensation issue is further complicated by the collection process. One industry source told The Wire Report that law enforcement agencies from around the country owe telephony providers hundreds of thousands of dollars in fees related to requests for telephone services like intercepts—some dating back several years. Communications lawyer David Elder, counsel at Stikeman Elliot LLP, said in an interview that some police forces refuse to pay for court-ordered services as a matter of principle. “It’s a bit of a mixed bag across the country,” he said. “From the service provider’s point of view, they’re saying, ‘Of course we’ll comply with court orders, but we’re getting an awful lot of these and they’re costing us an awful lot of money, to the point that we maintain fulltime personnel to do nothing but deal with lawful intercept requests and it’s appropriate we get compensation for that.’” Woodhead said he hopes the compensation will be sorted out in the new legislation. “Some law enforcement agencies don’t wish to compensate. Others do, and we’d hoped that would get sorted out as this bill proceeds through Parliament,” he said. “We’d like some clarity on that.” Law enforcement fees associated with telephone services are now regulated by the CRTC, but it is expected that Public Safety will regulate the new fees. One industry source said the non-collection of fees could hurt small ISPs, which would find it difficult to recoup the costs. “It’s concerning … There is a precedent there. Some law agencies simply do not pay what they have been asked in the past,” the source said, adding that phone companies have hesitated to take the matter to court. The CWTA declined to comment on issues about collecting payments. Elder pointed out that there is also the issue of ensuring service providers’ new technologies are up-to-date with the demands of the legislation. “There’ll always be a potential gap looking forward. Who knows what kind of services the future might hold. Obviously a big concern for the industry has been that they not be held back in a competitive marketplace because there isn’t a readily available intercept solution,” he said. “At the same time, the police don’t want safe havens set up for criminals because they will flock to services that they know are not capable of being intercepted.” kfournier@thewirereport.ca

Lawful access bills lack clarity on compensation, telcos say

News | November 12, 2010

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