Regulation of Interception of Communications and Provision of Communication-Related Information Bill

SUMMARY
The Committee were concerned about certain provisions in the Bill:
- The costs to the service providers and government for the establishment of the interception centres.
- Why the burden was being placed on service providers to obtain certified copies of their potential customers' identification documents.
- The storage of certain information for three years.
- How the loss of a cellular phone or SIM card should be reported in rural areas.
- Whether the right to make oral directives, permitting interceptions, could be abused.
- The constitutional status of the Bill as it infringes on one's basic right to privacy.

The drafter noted that certain proposed amendments would be placed before the Committee once the Minister had approved them.

MINUTES
Mr Labuschagne (Department drafter) outlined the functions of some of the chapters in the Bill:
Chapter 1, Clause 1 deals with definitions.

Chapter 2, the purpose of this chapter was two-fold. It would prohibit the intentional interception of communications by individuals and by telecommunication service providers.

Chapter 3 ensures that only senior people may apply for the issuing of these interception directions and that only a judge, appointed by the minister, may issue such directions.

Mr Labuschagne pointed out that Clause 30 has made the storing of communication-related information compulsory and that the compensation contemplated in Clause 31 would be done at their own cost, that is, the postal service provider, telecommunication service provider and decryption key holder.

Chapter 6 creates a fund, which will assist the small Internet Service Provider.

Mr Labuschagne continued with a clause-by-clause discussion of the Bill. He did not go through each and every clause but only those that were important in his opinion.

Mr. Labuschagne explained that there are 2 types of communication, direct and indirect. Direct communication takes place between x and y when x and y are in each other's company. Indirect communication takes place when x and y speak to each other on the phone and when they fax or email each other, in other words when they are imparting information to each other without being in each other's company. He also said that - simply put - you are a party to a communication if you are in the immediate vicinity while the communication continues, even if you are not the person making the communication or the person being communicated to.

Clause 4 and 7 describe instances when one may intercept communications.
Clause 4 - Interception of communication by party to communication.
Clause 7- Interception of communication to prevent serious bodily injury. He said there needs to be a certain level of urgency before relying on this clause, for example, kidnapping. Sub-clauses (2) and (3) ensure that the law official who has made the interception and the telecommunications service provider both give written affidavits for the interception. He said that these are checks and balance provisions and in this way they ensure that the power created by Clause 7 is not abused.
The Bill also allows for the interception of telecommunications in prisons now; the current legislation does not allow for this - it only allows postal communications in prisons to be intercepted.

Clause 11, Monitoring of signal and radio frequency spectrum for purposes of managing radio frequency spectrum - this permits ICASA to intercept signals not communications.
Clause12, Prohibition of provision of real-time or archived communication-related information
This clause is a second general prohibition, but exemptions to this prohibition may be found in Clauses 13 and 14.

Clause 16: Application for, and issuing of, interception direction
In 16(1) "applicant" means only the most senior officials in the Police, Defence, Intelligence, Scorpions and Asset Forfeiture Unit.
The interception direction must specify the grounds on which the application is made.
Clause 16(5)(a) gives the conditions under which the judge may issue a direction. The judge may only issue a direction on the grounds established in this subclause.
Clause 16(6)(d) states that an interception direction will not be valid for longer than 3 months.

Regarding Clauses 17 and 18, Mr Labuschagne explained the difference between real time and archived information: information relating to the period of 0-90 days from the day the communication was made, would be real time information and that information relating to a period after the 90 days is archived information.

Clause 18: Combined application for, and issuing of, interception direction, real-time communication-related direction and archived communication-related direction or interception direction supplemented by real-time communication-related direction.
- This enables an applicant to apply for various directions in one application.

Clause 23, Oral application for, and issuing of, direction, entry warrant, oral direction or oral entry warrant:
- Mr Labuschagne said that this was a very important clause because it allows for the oral application for, and issuing of, direction, entry warrant, oral direction or oral entry warrant.

Clause 28, Assistance by postal service provider and telecommunication service provider:
This clause spells out the duties of the postal and telecommunications service providers to whom a direction was issued.

Clause 32, Establishment of interception centers:
- The minister referred to is the Minister of Intelligence.

Clause 36, Head and staff of interception centers:
This clause establishes that the heads of the interception centers will be assisted by other members of law enforcement agencies.

Clause 37, Keeping of records by heads of interception centers and submission of reports to Director
- This clause deals with the record-keeping by heads of interception centers and submission of reports to the director.

Clause 38, Establishment and control of Internet Service Providers Assistance Fund.
- This clause deals with the fund that will be established to assist the smaller Internet service providers.

Clauses 39 and 40 make it law for the telecommunications service provider to obtain certain information from the customer before they can provide a service to that customer. This information must be obtained from the customer and be kept. If a law enforcement officer requests this information, then the service provider must be able to provide that information and the telephone number which was given to that customer.

Clause 44 deals with listed equipment.

Clause 49, Unlawful interception of communication, makes it an offence if someone intentionally intercepts or attempts to intercept, or authorizes or procures any other person to intercept or attempt to intercept, at any place in the Republic, any communication in the course of its occurrence or transmission.

Clause 50, Unlawful provision of real-time or archived communication-related information, makes it an offence to give real time or archived information relating to communications of a customer to someone other than the customer unless the provision of this information falls within the exemptions.

Clause 51 deals with the offences and penalties created by the Bill.

Clause 52: Failure to give satisfactory account of possession of cellular phone or SIM card amounts to an offence.
- Offences are also created by Clauses 53 to 55.

Clause 57 deals with the forfeiture of listed equipment and the clause allows the owner of forfeited equipment to apply for the setting aside of a forfeiture order if the owner had no part in the offence and other requirements are met.

Clause 58, Supplementary directives regarding applications, allows the designated judge to issue further directives to supplement the procedure for making applications for the issuing of directions or entry warrants in terms of this Act.

Mr Labuschagne concluded his briefing by adding that there were further amendments to the Bill which still had to be presented to the Minister for comment and once that was done, the potential amendments would be brought to the Committee.

Discussion
Mr Ralane (ANC) asked if the department was considering some exemptions in costs for the service providers who are parastatals such as Telkom.

Mr Labuschagne replied that the costs issue was the most controversial issue of the whole Bill. He said that when the SA Law Commission had investigated this issue, they concluded that the service providers should carry these costs and the Communications Portfolio Committee and the National Assembly as a whole, had agreed.

Mr Matthee (NNP) asked what the financial implications were, firstly for the government and secondly for the service providers. He said that he was not aware of any costing that had been done. He was not expecting an exact figure, but he believed that the Committee should be given some idea. He also wanted to know what the effect would be for Telkom and if the costs would be the same for all service providers.

Mr Labuschagne said that he had no figures with him, but that he may be able to provide some at the next meeting. The service providers had been given the opportunity to appear before the Portfolio Committee and had told that Committee what the financial implications on them would be. He assumed that the financial implications for the state would be less than for the service providers, but these would be dependent on how many interception centers were created. From a practical point of view, he could not see that cellular phone providers would be facing the same costs as fixed line providers because cellular phones have more expensive technology.

Ms Lubidla (ANC) asked the constitutional status of the Bill, how long it had been with the Portfolio Committee and whether there had been widespread consultation on it.

Mr Labuschagne replied that as far as the constitutional status goes, the Bill does infringe on privacy, but because there are so many safety mechanisms built into the Bill, any unnecessary interception would be avoided and therefore limit the infringement of the right to privacy. The Bill had been with the Portfolio Committee since September 2001, but he stands to be corrected. He said that the reason it had taken so long is because they accommodated many public hearings and the whole Bill was redrafted to bring it in line with foreign legislation such as that of the UK, USA, Canada and Australia. The Bill emanates from a research report by the SA Law Commission who then published a paper and got comments on it. The Portfolio Committee had issued a press statement enabling the public to comment on the Bill. Many submissions were received and that is why he believes that consultation was very wide.

Mr Mkhalipi (ANC) asked whether in terms of this Bill, it was necessary to make the person - whose communication was being intercepted - aware of such interception. Mr Labuschagne said that they have not made provision for making the person aware of the interception because that would go against the objective of the Bill.

Mr Labuschagne noted that Clause 30 is one of the clauses for which they have proposed amendments to discuss with the Minister and so not much time was spent on it in his briefing, but he said it was not their intention to prescribe to service providers what models or designs they should be buying.

The Chair asked if the Bill was not making it difficult for small service providers to get their companies off the ground by expecting them to get the certified photocopies of the customer's ID before being able to sell customers a phone or a SIM card. Are they now expecting these small businesses to buy photocopiers?

Mr Labuschagne made the point that the burden is not on the service providers to make the copy, only to obtain the copy from the customer. The fact that the copy needs to be certified also means that the customer would have to get the copy certified before making the purchase because the vendor is not authorized to make the certification of the copy. This provision - to keep the certified photocopies of identification documents may be struck down - but if the provision is kept then they would not be expecting anyone to be buying photocopiers.

The Chair asked a question by way of example: if he lives in a rural village which is 200km away from the nearest police station and he has lost his phone or SIM card, then would he have to report the loss to the police station, ministerial center or to an interception center. Where would he have to report the loss if he had bought the phone in Cape Town, but lost it in the Limpopo.

Mr Labuschagne said that in terms of the Bill, the report of the loss can be done by phone, he would not have to go in person to report the loss.

The Chair pointed out that if the cell phone had been his only form of communication then the provision to report the loss over the phone would be of no help to him.

The Chair then asked how they could be sure that the giving of oral directives would not be abused.

Mr Labuschagne replied that only one judge will have this power and that it is not foreseen that more than one judge will have this power at the same time. There would be ways to make sure that the judge giving the oral directive was in fact the judge that had the power to do so.

The Chair and other members found this very funny and a bit naive on the part of Mr Labuschagne.

Mr Mkhalipi asked whether there would be a restriction on the number of people involved in an interception since the information obtained from such an interception would be confidential.

Mr Labuschagne said that he did not think that there would be any way that they could limit the number of people involved in the interception. Clause 42 places a prohibition on the disclosure of the information obtained through the interception and this seems to be the best way to keep the information confidential.

Mr Matthee proposed that the Tuesday 29 October meeting be postponed until after Mr Labuschagne had met with the Minister to discuss the amendments.

The Chair asked what happens to the listed equipment.

Mr Labuschagne said that anyone in possession of listed equipment before the Act comes into operation could apply to the Minister for exemption in terms of Clause 46(1). If the Minister refuses then that person would be guilty of an offence, but the Minister would have to take certain things into consideration before making the decision for or against the exemption.

Mr Matthee noted that Mr Labuschagne had said that wide consultation had taken place with the public, but he had not seen any submissions. He therefore did not know which submissions were received and which were accommodated. He did not want to hear all the submissions, but he would like Mr Labuschagne to provide the Committee with the salient points, which were raised in the submissions. Otherwise - at the moment - he just feels like he is flying blind.

Mr Mkhalipi agreed with Mr Matthee. Further he said that he did not understand why this is a section 75 Bill as he is very mindful of the implications the Bill has for the provinces, especially the implications the Bill has for the existing jobs in the provinces.

Mr Labuschagne said that he would make copies of the submissions made on the Bill and distribute them among the committee members. He could not answer as to why this is a section 75 rather than a section 76 Bill.

The point was raised that Clause 51 seems very severe especially with the maximum amount for fines being so high.

The question was also raised as to why service providers would be expected to keep certain types of information for a period of three years. The feeling was that three years was too long a storage period.

Mr Labuschagne replied that the Portfolio Committee had proposed that the Bill should stipulate the fine amounts. He agreed that the amounts are high, but these are the upper limits as the Bill always says, "not exceeding". Therefore the judge can make the fine any amount lower than the amount given in the Bill. The fines are severe because it is a serious crime, which would infringe on someone's privacy. The R5 million upper limit is also only for juristic persons.

Mr Labuschagne said that the requirement for keeping information for three years is sometimes necessary because when organised crime is being investigated it is necessary to go back in history to find the working methods of these criminals and if a lesser time period is prescribed, it may make it difficult for the police to make their investigations.

Mr Matthee commented that it is imperative that legislation - which will have a positive impact- be enacted, but at the same time they do not want unintended consequences which will not help the situation, but may make it worse. If the Committee was told how much money would be involved in setting up these interception centers, then they could better assess whether there is not a better way in which to apply this money to crime prevention schemes. He asked Mr Labuschagne to address this matter by giving them some figures so that it would be easier for the Committee to decide on the Bill.

The Chair asked how this Bill would capture the pay-as-you-go customers because once the Bill becomes an Act, these people would already have phones.

Mr Labuschagne pointed out that he needed to make it clear that he is defending a Bill which comes from the Portfolio Committee and not from his department - and that he is from the justice department and not the Portfolio Committee. All that he could say on the "pay as you go" issue was that the Portfolio Committee had considered the feasibility of this Bill and according to them it is the best route to take even though it will cost the service providers lots of money. He added that he saw no reason not to meet the next day because the amendments in no way changed the structure of the Bill. Those specific amendments could always be discussed later.

The meeting was adjourned with the decision to meet the next day and that any amendments would be brought to the Committee as soon as possible.