Carriers and government spar over “duty to disclose” provision in Bill C-36

Legal experts and the federal government are at odds over the potential effects of Bill C-36, particularly its requirement to force telecom providers to disclose potential terrorist activity. At a session of the New Developments in Communications Law and Policy Conference in Ottawa April 26, senior legal advisors from Bell Canada, a University of Toronto law professor, and representatives of the federal Department of Justice sparred over measures to comply with the Anti-Terrorism Act (RoW, April 3/02). David Elder, assistant general counsel at Bell Canada, said that while the newly enacted law doesn’t have a direct impact on the telecom sector, provisions in the bill necessitate a closer knowledge of service providers’ subscribers and their habits. Fear from the carrier community is what to do when employees are indirectly exposed to or come in contact with terrorist information. During his presentation, Elder said that Bell is already considering implementing measures to address this thorny issue. According to the "duty to disclose" provision in C-36, the carrier is required to disclose that information to law enforcement, if it has knowledge of any terrorist activity. If that information is not relayed to the proper authorities, then the carrier is criminally liable under the law. But the issue becomes tricky when a particular employee is reluctant to pass along the information. Elder said Bell is already working with front-line employees, technical support staff in call centres, and other workers who could indirectly come into contact with this type of information. While he admitted that this is a potential solution, training these employees effectively so that they report this type of activity could be a huge undertaking. Elder suggested there should be some guiding principles going forward. There shouldn’t be liability assigned for normal business operations. The cost of upgrading networks to make the collection of this data possible should be based on a cost-recovery model, and there shouldn’t be a requirement stating that carriers need to retain this data beyond what is called for in normal business operations. However, the issue becomes murky when there is no concrete evidence of malfeasance. Lisa Austin, assistant professor of law at the University of Toronto, said during her rebuttal of Elder’s presentation that the issue of privacy is raised when carriers collect data on a particular subscriber. She asked what the consequences would be if a carrier suspended service of a particular individual or group based only on suspicion. For the federal government, however, the issue in question is simple. If information on terrorist activity is obtained, service should be severed and the activity should be reported to the proper authorities. If the carrier has no prerequisite knowledge in the delivery of the service, then there is no criminal liability, according to one of the Justice department’s top legal advisors. Paul Saint-Denis, senior counsel, criminal law policy section at the Department of Justice, said in his rebuttal to Elder’s presentation that the law was never designed to entrap carriers in criminal activity. The aim of C-36 is to catch terrorists engaged in criminal activity. "We wanted to meet our international obligations with this legislation, but we tried to balance protection against the Charter of Rights and Freedoms," Saint-Denis told the audience. Elder also expressed concern over who would pay for the additional equipment in the network that enables this data collection and storage. The United States, the U.K., and Australia already have laws that require certain equipment to be installed within the network to enable surveillance. But all three countries have different cost-recovery models, he stated, adding that Australia makes the carriers pay, while the U.S. provides financial support. With more anti-terrorism legislation on the horizon, Elder believes that the worst is yet to come. As he suggested in a recent interview with Report on Wireless, closer scrutiny of all telecommunications services would be the order of the day with the potential abolition of pre-paid wireless.

Carriers and government spar over “duty to disclose” provision in Bill C-36

News | April 30, 2002

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