Release of service provider information divides law enforcers and civil libertarians

A proposal to give law enforcement agencies the authority to find out which telcos individual customers use is drawing support from police, criticism from privacy groups and uncertainty from the phone companies. In Public Notice 2000-97, the CRTC asked for comments on handing over service provider identification (SPID) information to authorities. Specifically, it sought to determine if such information is still considered confidential in a multi-carrier system; whether subscribers can expect such confidentiality; if subscribers should be told police are seeking the data; and just how many agencies would be able to access the information without a warrant. The move comes in the wake of Consensus Report NSRE001 of the CRTC Industry Steering Committee Network Security Working Group, released in April of last year. On May 15, 2000 Bell filed Tariff Notice 6479, which will provide law enforcement agencies (LEAs) with the name of the service provider for any geographic, ported or non-ported 10-digit phone number in this country. The Alberta Association of Chiefs of Police (AACP) is enthusiastically supporting the proposal. "Service provider identification does not reveal information of a personal nature such as address, or detailed billing information," the association argues in its August 23 intervention. "Indeed, far more detailed information is openly available to both the public and law enforcement where publicly regulated activities are concerned." Not so fast, replies the British Columbia Civil Liberties Association. "The BCCLA submits that any person or organization, regardless of its nature, has at least an ethical obligation to treat its list of clients or members as confidential," the group writes in an August 18 filing. The organization worries approving the move could set a precedent. "The BCCLA concedes that there is no particularly sensitive or revealing information about which telephone company an individual subscribes to. At least not yet since all telephone companies offer substantially similar services, though this might change in the future." Three groups of clientele The civil liberties group believes the proposal should break customers down into three distinct units: wireline subscribers who have their numbers published in local white pages or Canada411 service; those who pay to have numbers and addresses unpublished; and wireless users. The first group has little or no expectation of privacy, the BCCLA offers. But the other two have a reasonable assumption their information will not be disseminated. Solidly in the BCCLA’s corner is another government body – the Office of the Privacy Commissioner of Canada. In his letter, issues management and assessment director Brian Foran writes, "The information involved – one’s choice of a telecommunications service provider – is neither intimate nor highly sensitive. Nonetheless, the principle remains – individuals have a right to control information about themselves." The provisions of the Personal Information Protection and Electronic Documents Act (PIPED) get different interpretation in the dueling submissions. In their filing, the Alberta chiefs state, "We note that new federal legislation will expressly allow personal information to be shared with investigative bodies without the requirement of a warrant and without the knowledge or consent of the individual in question when this information is required to further an investigation." But Foran of the Privacy Commissioner’s office quotes subsection 7(3)(c.1), which does not permit unwarranted disclosures of personal data. He concedes the status quo is preserved by allowing information to be released on a case by case basis at the discretion of the issuing company. But PIPED does leave open the possibility such actions could be challenged under the Charter of Rights and Freedoms. "We believe that the CRTC’s approval of the consensus report and Bell’s tariff would subtly shift the status quo and lessen Canadians’ protection under the Charter because the CRTC’s approval could become a factor in the event of a Charter challenge," the director states. That argument doesn’t carry much weight with the Calgary Police Service, whose response is in the same vein as the provincial chiefs of police. "Sharing of information that does not violate constitutional protections or standards may still take place," the CPS writes, citing the Supreme Court’s decision in R v Plant. "Note that in Alberta the Registrar of Motor Vehicle Services is exempted from coverage under the Alberta Freedom of Information and Protection of Privacy Act. Instead, motor vehicle registration and operators license information is shared with law enforcement agencies outside any express authority provided by statute." Bell Canada is looking to the CRTC for guidance. In her August 24 submission, Teresa Muir, the director of regulatory matters for the telco, wonders if the release of such material could place it in violation of its terms of service. Article 11 of the terms restricts who the company may release information to without the customer’s consent. "In view of the fact that the matter is not entirely free from doubt, the disclosure of SPID should be made with specific Commission authorization," she concludes. She nudges the CRTC to the company’s position a few pages later, however, when she writes, "Bell Canada further notes, incidentally, that pursuant to Article 14.1 of its terms of service, customers do not have property rights in telephone numbers assigned to them." Muir says that informing clients that LEAs were seeking data could hinder police investigations and overtax Bell employees. Customers are likely to ask questions Bell’s workers cannot answer. The same day that Muir wrote her letter, Telus government and regulatory affairs VP Willie Grieve offered his company’s assessment. "Neither the Consensus Report, nor the service proposed in TN 6479, permits law enforcement agencies to enter private property to look for or to seize evidence. The proposals merely identify the local service provider of a given number," he tells the CRTC. "Therefore, the Commission’s approval of the Consensus Report and TN 6479 would not amount to a warrantless search or seizure contrary to section 8 of the Charter." The AACP wants further concessions from the telcos, stressing the importance of having up to date information and keeping their investigations secret. Under the proposed system, LEAs could be forced to contact several carriers to obtain the data. The more people who know someone is under investigation increases the intrusion into that person’s privacy. "These issues can be addressed through the creation of a stand alone national database which provides a single point of contact to investigative agencies," the chiefs recommend. "As well, the AACP says police should not be required to pay a tariff for information required by it to advance public safety." Those costs should be assessed to the telcos and the clients, the association asserts. Muir says Bell does not have the capability to provide such a service. She also rejects the proposal by various federal LEAs that such data be available around the clock. The company is able to fulfill its obligations under current rules during regular business hours, she tells the CRTC.

Release of service provider information divides law enforcers and civil libertarians

News | September 11, 2000

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