Carriers must be alert to provisions of new anti-terrorist legislation, lawyer warns

The federal government’s omnibus legislation to fight terrorism has implications for the telecom sector that were little noted when the bill was passed last fall. Activities that have been considered part of normal customer service could end up being seen as abetting subversives. Following the September 11 attacks in the United States, the government introduced and later passed Bill C-36, the Anti-Terrorism Act. It amended several federal statutes concerning criminal law, security and defence. While most of the changes do not affect the telecommunications industry directly, telecom observers say increased awareness of who customers are and what they are doing will be necessary. David Elder, assistant general counsel at Bell Canada, notes that the legislation creates several offenses relating to terrorist property. The problem is that that phrase is broadly defined. "‘Terrorist property’ could include someone else’s property that’s been used for terrorist activity," he tells Network Letter. "So it could include, in theory, a switch or a private line or a server that’s owned by a carrier or an ISP." The Act’s provisions say that it is an offense to provide property that is used for terrorist activity. Telcos and Internet service providers could be found criminally liable if they knew or should have known that their facilities were being used for illegal purposes. Assisting in terrorism is similarly proscribed. Elder presents a scenario that normal business services could run afoul of the legislation."Another thing obviously that telcos or ISPs are going to have to watch is the extent to which they provide consulting services to clients," he states. "And I would think that, in particular, that would include things like network design, security, encryption advice. Obviously, that’s expertise that could be quite valuable to terrorist organizations." The new laws also extend the rules on hate propaganda to cover computer networks, including the Internet and intranets. Courts could order certain web sites be taken down. This, in turn, would create a heavier workload for hosting providers. The federal government maintains a list of known terrorists or terrorist organizations. Businesses are urged to consult the list to ensure they are not dealing with banned groups. The existence of a record makes it easier for the companies to comply with some sections of the bill. "The government does put out a list of known terrorists; they’ve been doing that for some time under UN regulation," Elder notes. "So we will have to check those lists, but frankly I find it unlikely that Osama bin Laden is going to come in and request an OC-3." In a presentation he has been giving to government and industry associations, Elder adds that the department of revenue has stripped some organizations of their charitable status, due to suspected terrorist connections. This could mean that charitable donation programs run by the carriers will have to keep track that recipient groups are not on the banned list. Some of these new provisions place an increased burden on the telcos and the ISPs. "I suppose it’s always been possible for a carrier to be found to be an accessory to an offense. But up until now, courts haven’t looked at things that way," Elder says. "They’ve endorsed the notion of common carrier. We provide pipes and it’s not for us to be thinking about what’s going on over those pipes or taking any action in that regard. And that has been the way we’ve tended to operate. In the past, if someone called us and said ‘your telephone is being used by an illegal bookmaker’ the response would tend to be ‘we think you should contact your local law enforcement’." Now the companies will need to check lists and to sensitize their own security personnel and other specialized workers. A duty to disclose information about terrorist property and similar transactions to legal authorities is also now part of the process. Willful blindness – ignoring what a client is doing – is tantamount to liability. While giant conglomerates like Bell and Telus Corp. may find the extra paperwork annoying, the workload could be crushing for small independent telcos, other observers say. All carriers are obliged to comply with the new rules, and there is no option to claim a firm is too small to abide by the Act. Not everything has changed in the way carriers cooperate with the police. Warrants are still required for electronic surveillance, for instance. But Elder says the new legislation makes it easier for law enforcement officials to obtain those warrants. Telcos could thus be faced with a greater number of requests for electronic surveillance. More anti-terrorism measures? The Anti-Terrorism Act may well be the first step in a prolonged approach to anti-terrorism. Further legislation, nicknamed "Omni 3", is said to be in the works. Elder notes that Canada has signed, though not yet ratified, the Council of Europe Cybercrime convention. This could necessitate changes to rules on preservation of data, production orders, and 24/7 contact and assistance. There are also rumours that Canada could adopt laws similar to the U.S. Communications Assistance for Law Enforcement Act (CALEA). "There’s all this speculation about what the next shoe to drop may be," Elder says. "There’s some speculation that Omni 3 may include some CALEA-like provisions so that there would be requirements on carriers to build into their networks sufficient access capability for law enforcement to do electronic surveillance." Police would like to see warrants targeted at individuals and organizations, not just phone numbers and IP addresses. There are similar calls for 18-month retention of all traffic data and email and more cooperation over encryption and key retention. It is also possible that law enforcement officials would like wireless providers to do away with prepaid systems, since they are harder to track and do not leave a paper trail. Elder is advising carriers to review their operations to see where they risk exposure to the conditions of the law. They should be developing plans to comply with the new rules. The Bell lawyer urges telcos and other companies to let the government know what their concerns are and to be prepared for the introduction of the Omni 3 package. The firms should be ready to get involved when and if the legislation is tabled.

Carriers must be alert to provisions of new anti-terrorist legislation, lawyer warns

News | March 25, 2002

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