Telecom Decision CRTC 2002-21

Ottawa, 12 April 2002

Provision of subscribers' telecommunications service provider identification to law enforcement agencies

Reference: Bell Canada tariff notices 6642 and 6642A

Summary

In a March 2001 determination (Order CRTC 2001-279), the Commission established three conditions that had to be met before Bell Canada could provide a law enforcement agency (LEA) with the identity of the local service provider associated with a particular telephone number for the purposes of law enforcement. In a December 2001 application to the Commission, Bell Canada submitted proposed revisions to the three conditions of service set out in Order CRTC 2001-279 to reflect the fact that the mandate of LEAs is not restricted only to criminal investigations.

In this decision, the Commission determines that revisions to the conditions should be made to allow the release of local service provider identification for emergency situations and national security reasons, as well as law enforcement purposes. To this end, the Commission has modified the three conditions of service and directs Bell Canada to issue revised tariff pages forthwith.

Introduction

1. In Provision of subscribers' telecommunications service provider identification information to law enforcement agencies, Order CRTC 2001-279, 30 March 2001, (Order 2001-279), the Commission approved Bell Canada's tariff notice (TN) 6479 for a Local Service Provider Identification (LSPID) service to provide law enforcement agencies (LEAs) with the name of the firm providing local telephone service to a particular telephone number, subject to certain additional conditions.

2. In Order 2001-279, the Commission established the following three conditions that had to be met before LSPID service could be provided to an LEA:

1. the LEA requesting the information is acting pursuant to a lawful authority;
2. the LEA is gathering intelligence for the purpose of a specific, active investigation relating to the enforcement of a law of Canada, a province or a foreign jurisdiction; and
3. the LEA requires the information in order to obtain a warrant, which is required to obtain information relating to the subscriber.

The application

3. On 21 December 2001 and 28 January 2002, Bell Canada filed TNs 6642 and 6642A, respectively, seeking the Commission's approval of amendments so that meeting any one of the conditions set out above would suffice.

4. In its application, Bell Canada submitted that it has gained practical experience in its day-to-day operation of LSPID service. Bell Canada submitted that it has found that the tariff is too restrictive because it prevents the company from providing LSPID to an LEA when an LEA is acting pursuant to a lawful authority, but is not engaged in a specific, active investigation or is not preparing to obtain a warrant relating to a subscriber; for example, when an LEA is trying to locate a missing person or is responding to a medical or other emergency, such as a disaster. Bell Canada also raised concerns based on increased security issues that have arisen since Order 2001-279. The company noted that it was aware of legislation being considered, at the time of its submissions, that would increase the ability of LEAs to engage in investigations and conduct searches either with no requirement for a warrant or preceding the issuance of a warrant, in response to serious security concerns. Thus, according to Bell Canada, the requirement to meet all three tariff conditions prevents an LEA, which may require LSPID in the above situations, from meeting its responsibilities.

5. Bell Canada noted that, based on its experience, an LEA that seeks LSPID under a lawful authority but in a capacity unrelated to a criminal investigation could be accommodated if it met tariff condition (i), as set out above. An LEA that sought LSPID as part of a legally authorized investigation not requiring a warrant, could be accommodated under either tariff condition (i) or (ii).

6. Bell Canada submitted that the public would be sufficiently protected if LEAs had to satisfy one of the three conditions as opposed to all three conditions established in Order 2001-279. To this end, Bell Canada proposed to add the word "or" at the end of tariff condition (i) and replace the word "and" with "or" at the end of tariff condition (ii).

Comments on the application

7. The Privacy Commissioner of Canada (the PC) was the only party that filed comments on Bell Canada's application.

8. In his comments, dated 10 January 2002, the PC submitted that Bell Canada's proposal sets out a lower standard for disclosure of personal information to LEAs than does paragraph 7(3)(c.1) of the Personal Information Protection and Electronic Documents Act (the PIPED Act). The PC indicated, for example, that the PIPED Act does not allow for disclosure to an LEA under lawful authority alone, but must be based on the specific purposes set out in any one of subparagraphs (i), (ii) or (iii) of 7(3)(c.1). The PC submitted that the tariff would be "totally ineffective" because Bell Canada would be bound by law to meet the higher standard established by the PIPED Act or risk being in contravention of that law.

9. The PC suggested addressing Bell Canada's concerns regarding emergency situations without lowering the standard for criminal investigations by adopting wording similar to paragraph 7(3)(e) of the PIPED Act, which refers to "an emergency that threatens the life, health or security of an individual".

10. The PC also expressed concerns that the term, "law enforcement agency", in Bell Canada's proposed tariff does not include national security organizations such as the Canadian Security Intelligence Service (CSIS) or the Communications Security Establishment (CSE). However, the PC suggested that paragraph 7(3) (c.1) of the PIPED Act allows enough latitude for these organizations to function and, therefore, the tariff need not deal with this issue.

11. The PC suggested that if the Commission is considering making a change to the tariff, it should only be done after a public hearing where these issues can receive a full and informed airing.

Bell Canada's reply comments

12. In its reply comments, dated 18 January 2002, Bell Canada suggested that the PC may mistakenly believe that with a telephone number and LSPID, an LEA could obtain the identity of and other detailed information concerning a subscriber from the local service provider. Bell Canada noted that even with a telephone number and LSPID, the LEA must still make a request to the local service provider pursuant to a lawful authority, and subject to statutory restrictions and/or judicial oversight, to obtain the identity of the subscriber related to the telephone number. Bell Canada noted that in a monopoly environment, an LEA had no difficulty determining the local service provider. In the new competitive environment, LSPID is required in order to obtain the name of a local service provider that provides service to a specific telephone number. LSPID reveals nothing about the identity or activities of the subscriber related to the telephone number.

13. The company submitted that the arguments put forward by the PC were based on the assumption that the PIPED Act applies. Bell Canada submitted that the PIPED Act does not apply to the LSPID service, and that no lower standard for disclosure was being proposed. Bell Canada argued that LSPID is not "personal information" under the PIPED Act as it only discloses information about an identifiable phone number. In Bell Canada's view, therefore, the PIPED Act does not apply.

14. Bell Canada also argued that the PIPED Act is a general statute dealing with the protection of personal information whereas the Telecommunications Act (the Act) pre-dates the PIPED Act and specifically deals with telecommunications services and technologies. Bell Canada noted that the Commission's power to make orders relating to tariffs derives directly from the Act, which has in its objectives a requirement to "contribute to the protection of the privacy of persons". As a result, Bell Canada submitted that the Act has priority in this limited area.

15. With regard to the PC's concerns concerning the term, "law enforcement agency", as it relates to CSIS and CSE, Bell Canada questioned the relevance of the comments, as the status of these organizations was not an issue in the company's application. Nonetheless, Bell Canada asserted that CSIS is an LEA under the tariff and the PIPED Act is not sufficient to afford either CSIS or CSE access to LSPID or related information.

16. Bell Canada argued that the PC had ignored section 25(1) of the Act, which prohibits carriers such as Bell Canada from providing a telecommunications service except in accordance with an approved tariff. Bell Canada pointed out that the Commission determined in Order 2001-279 that the provision of LSPID information to LEAs is a telecommunications service for which a tariff must be filed.

17. With regard to the PC's suggestion that the wording in the tariff be modified to mirror the language in section 7(3)(e) of the PIPED Act, Bell Canada argued that such a change would still be too restrictive, as it does not cover the situation of an LEA needing LSPID information as part of a non-criminal, non-emergency situation such as an ongoing missing person's investigation.

The Commission's determinations

18. In Order 2001-279, the Commission found that the provision of LSPID is a telecommunications service. Therefore, LSPID can only be provided by a carrier in accordance with an approved tariff.

19. The Commission considers that the current tariff does not address situations where LEAs, under lawful authority, may require LSPID in circumstances other than an ongoing criminal investigation and when preparing to obtain a warrant. For example, LSPID may be required in order to perform other statutory duties, such as those relating to disasters, security needs, missing persons, etc.

20. The Commission notes that the LSPID service provides only for the disclosure to an LEA of the name of the service provider associated with a telephone number. The Commission considers that it would be in the public interest to allow for the disclosure of such limited information for the purpose of protecting national security, for emergency situations and for situations such as the missing person scenario, which may or may not be an emergency situation.

21. The Commission is of the view that the modifications to the existing tariff proposed by Bell Canada are unnecessarily broad. The PC's proposal, on the other hand, would not be sufficient to address all the scenarios in which it would be appropriate to provide LSPID. In the Commission's view, the conditions set out below would adequately meet the concerns expressed by both Bell Canada and the PC.

22. The Commission therefore finds that the following modified conditions of service are appropriate. To obtain LSPID information pursuant to Bell Canada's tariff, an LEA must identify its lawful authority to obtain the information and indicate that:

1. it has reasonable grounds to suspect that the information relates to national security, the defence of Canada or the conduct of international affairs;
2. the disclosure is requested for the purpose of administering or enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing or administering any such law; or
3. it needs the information because of an emergency that threatens the life, health or security of an individual, or the LEA otherwise needs the information to fulfill its obligations to ensure the safety and security of individuals and property.

23. LSPID is to be released to LEAs requesting it for any of the reasons set out above. The Commission notes that while these conditions are worded in a similar manner to paragraphs 7(3)(c.1) and (e) of the PIPED Act, the Commission is not bound by those statutory provisions. Rather, in the exercise of its powers pursuant to the Act, the Commission considers that the conditions of service that it has prescribed are appropriate in the circumstances of this application and will further the objectives of the Act in this case.

24. With regard to the PC's concern that certain national security organizations are not covered by the tariff, the Commission notes that the definition of LEA in the proposed tariff would encompass any government organization in Canada, which has the legislative authority to seek and obtain search warrants or subpoenas. In the circumstances, the Commission does not consider that changes to the tariff are required in this regard.

25. The Commission considers that all interested parties had notice of Bell Canada's application and that the record of this proceeding was adequate to deal with the issues. The Commission finds that a further process, as suggested by the PC, is not necessary under the circumstances.

26. In light of the foregoing, the Commission approves Bell Canada's application, subject to the modifications to the conditions of service as set out in paragraph 22 above. Bell Canada is directed to issue revised tariff pages forthwith.

Secretary General

This document is available in alternative format upon request and may also be examined at the following Internet site: www.crtc.gc.ca

Date modified:

2002-04-12