Regulation of Interception of Communication & Provision of Communication-Related Information A/Bill: deliberations

JUSTICE AND CONSTITUTIONAL DEVELOPMENT COMMITTEE
3 August 2006
REGULATION OF INTERCEPTION OF COMMUNICATION AND PROVISION OF COMMUNICATION-RELATED INFORMATION AMENDMENT BILL: DELIBERATIONS

Chairperson: Ms F Chohan-Kota (ANC)

Relevant documents
Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Draft Bill as of 2 August 2006- part one
Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Draft Bill as of 2 August 2006- part two
Vodacom submission – Part 1 & 2

SUMMARY
The briefing continued from the previous day on the latest working draft of the Regulation of Interception of Communication and Provision of Communication Related Information Amendment Bill. In Clause 2, the Committee considered various options to Section 40, which dealt with the electronic collection, verification and storage of personal information on customers of telecommunication service providers. The information would be used by the law enforcement agencies in apprehending criminals who used cell phones in the commission of a crime. Clause 3 included various options to the new Section 51 proposed offences, sentences and fines for contravention of the provisions of Sections 40 and 62. In depth discussions on the new Section 62(6) were postponed until the Committee decided on an approach for Section 40, which was an identical provision.

The Chair pointed out that the telecommunications service providers had not yet fully motivated their proposal for an extension of the period within which to capture all their customers on a database, despite having ample notice. The onus was on them to adduce evidence in favour of a new timeframe, but the Committee would stick to the 12-month period in the absence of such further motivation.

MINUTES
Clause 2: Substitution of section 40 of Act 70 of 2002
Section 40(7)
Mr S Robertse, Department of Justice legal drafter, explained that the provision referred to the specific duties required of telecommunication service providers under Section 39 of the principal Act. Option 1 now made those duties applicable to Section 40 of the principal Act. Option 2 merely stipulated that, in terms of Section 39, only a copy of the person’s identity document must be supplied to the law enforcement agency.

Mr L Bassett, Chief Director: Legislation in the Department, informed the Committee that Option 3 was the formulation preferred by the Committee during the last meeting. He explained that the three options were essentially the same, but differed only in drafting style. The formulation of the provision contained in the Bill that was tabled in Parliament merely referred back to Section 39. The Committee however indicated that it preferred a re-enactment of Section 39 in the Bill, in the new Section 40. That formulation made it much clearer than referring back to an existing section in another piece of legislation, and then also including exemptions to that section.

Mr J Jeffery (ANC) noted that Option 2 included a reference to Section 39(3)(c), whereas that reference was not contained in the original 40(7) in the document.

Mr Robertse replied that the reference to Section 39(3)(c) required the person to supply a copy of their identity document to the law enforcement agency. Option 2 merely reflected the obligation previously provided in Section 40, which required the telecommunications service providers to retain copies of the identity documents of their customers. It was thus necessary to make Section 39(3)(c) applicable to them as well.

The Chair sought clarity on the duties of the telecommunications service provider to store information, as contained in Section 39. She questioned the need for such a provision if all the requirements for the storage by telecommunications service provider were already covered in another provision.

Mr Robertse explained that the provision was needed because it allowed the law enforcement agency to secure certain information from the telecommunication service provider to confirm that the person was on their telecommunications system, so that the law enforcement agency could secure an interception order from a judge.

The Chair requested Mr Robertse to reformulate 40(7)

Mr Jeffery stated that he failed to see the necessity for the inclusion of the reference to Section 39(1), and proposed that the provision stipulate only “Section 39(3)(b) and (c) and 39(4) were applicable with the necessary changes”. That would be a neater formulation.

The Chair explained that the various options introduced the electronic storage system of the information, and was necessary so that people could not seek to evade Section 39 by asserting that they used the paper-based system. For that reason the last option was preferred.

Mr Jeffery agreed.

Mr Robertse explained that the version of 40(8) inserted below 40(7) in Option 3 was merely a formulation that sought to include everything in a single provision.

The Chair agreed and stated that that 40(8) must be made 40(7)(2) in Option 3, and the current 40(7) in Option 3 must be renumbered 40(7)(1).
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Section 40(8)
Mr Robertse informed the Committee that the option reflected the different time periods within which the reporting by the telecommunications service provider must take place when it discovered that a falsified document had been supplied by their customer.

The Chair reminded Members that the provision was proposed by one of the telecommunications service providers in its submission. However in their latest submission they called for the deletion of the provision which they themselves proposed, which was bizarre. The aim was to put in place obligations that were very clear and to provide definite guidelines for individuals.

Mr Jeffery stated that he preferred the option, because its formulation was much clearer. The Vodacom submission distributed at the meeting explained that it was no longer in favour of the provision because it required the telecommunication service provider to authenticate the identity document provided by the customer. He however disagreed, because the provision merely required the telecommunication service provider to verify that the person matched the details on document. The Vodacom submission made reference to the Financial Intelligence Centre Act (FICA), and clarity was needed on that Act’s approach to the matter.

Mr S Swart (ACDP) informed the Committee that the MTN submission indicated that FICA did not hold telecommunication service providers responsible for authentication of such information.

The Chair agreed, as FICA merely required them to verify information and not to authenticate it. The only difficulty with the option was that its ambit was much wider.

Mr Jeffery proposed that the details regarding the timeframes for reporting be prescribed in regulation.

The Chair disagreed. She stated that the timeframes must be specifically included in the legislation, and it must be made shorter than the 14-day period currently reflected in the document. She encouraged Members to think about the options and the Committee would consider them further at a later stage.

Clause 3: Amendment of section 51 of Act 70 of 2002
Mr Robertse explained that Section 51 criminalised certain conduct by telecommunication service providers and individuals alike, and prescribed penalties for such contravention. He stated that he would deal only with the criminalisation of the proposed Section 40 in Clause 2, because it mirrored the provisions applicable to the new Section 62(6) in Clause 4.

The new proposed 51(3A) imposed a fine not exceeding R100 000 for each day of non-compliance with Section 40(1) to (4) and (6), and Section 62(6)(a) to (c). He stated that if a reference to Section 39(4) were incorporated in Section 40, a contravention of that provision would have to be criminalised in Section 51(3). He proposed that if 40(7) in the previous clauses were to be adopted, then a contravention of that provision would have to be included here as well.

The Chair approved and suggested it be included as an option, which would be discussed by the Committee at a later stage. She stated that the Committee would consider the various options to 51(3B) and (3C) at a later stage, but it was clear that the intention was to criminalise non-compliance with the provisions regardless of the nature and extent of the non-compliance.

Mr Bassett proposed that the reference to ‘customer’ in 51(3B) be changed to ‘person’.

Mr Jeffery disagreed, as all the options to the proposed Section 40(5) referred only to a ‘customer’ and not to a ‘person’.

The Chair disagreed with Mr Jeffery. Option 1 of 40(5) placed an obligation on the recipient of the cellphone or SIM-card to provide full and correct details to the telecommunication service provider. The fact of the matter was that the recipient might not be a customer of that telecommunication service provider at the time of the transfer. If ‘customer’ were included in 51(3B) then a failure by that recipient to provide proper information would not be criminalised. She thus agreed with Mr Bassett that it be changed to ‘person’.

Mr Robertse disagreed with the Chair. He suggested that ‘customer’ be retained, because 40(5) placed an obligation on the transferor only, who was a subscriber at the time of the transfer.

The Chair disagreed. She reminded Mr Robertse that, at a previous meeting, the Committee had decided that both the transferor and the recipient would have to be present before the telecommunication service provider when transferring the cellphone or SIM-card. The transferor would be a customer of the telecommunication service provider, but the recipient might not be. They could not be allowed to fall outside the loop, and it was for that reason that the Committee took a decision to impose the obligation on both parties.

Mr Jeffery was concerned that the provision would be difficult to apply, practically, because it meant that a person would not even be able to lend their phone to a friend to make a call, for example.

The Chair explained that the provision would apply only to the transfer of ownership of a cellphone or SIM-card. The best thing an individual could do in the situation sketched by Mr Jeffery, was to inform SAPS of the person the phone was lent to on that day, when SAPS approached them for information.

She stated that the Swedish model made use of a form that required the telecommunications service provider to notify customers of the effects of the Act and their obligations under it. The Swedish telecommunication service providers were required to do so by the legislation itself. She proposed that the drafters consult those provisions in the Swedish legislation and perhaps add a similar but generic provision in the Bill. In their submissions forwarded to this Committee the telecommunications service providers did indicate that there would have to be an education campaign to alert their customers to the effects of the legislation.

Clause 4: Amendment of section 62 of Act 70 of 2002
Mr Robertse noted that these provisions were identical to Clause 2 which dealt with the new Section 40. As the Committee had not yet decided on the approach to follow in Section 40, he proposed that Clause 4 not be discussed at this point. He did indicate that Clause 4 could be approached in two different ways: the provision could either stipulate that section applied to Section 62(6), or the two provisions could be repeated and mirrored exactly. The only difference was that the process in Section 40 on the disposing of a cellphone would not be included in Section 62(6).

Ms Ina Botha, Department Director: Secondary Legislation, explained that Section 40 dealt with the transfer of a cellphone or SIM-card after the date of commencement of the Act. Section 62(6) however dealt with historical owners, who were people who already owned cellphones when the Act came into operation. She stated that Mr Robertse was questioning whether it was in fact worthwhile going through the whole new Section 62(6) in Clause 4 because, when the Committee had decided on the formulation of Section 40, the same approach would be adopted for Section 62(6).

The Chair requested Mr Robertse to take the Committee through Section 62(6)(a) and (b) at least.

Mr Jeffery agreed with Mr Robertse that the question to be decided was whether a mirror clause should be inserted or whether Section 62(6) should merely include a reference to Section 39. He proposed that it merely refer back.

The Chair noted that the various formulations of 62(6)(a) and (b) only required the telecommunication service provider to record and store information on their customers, but the provision must also place a clear obligation on the telecommunication service provider to also verify the information they received. She proposed that it mirror the formulation of the proposed Section 40(1)

Mr Jeffery asked when Vodacom would be submitting its final submission on the Bill. It was important for them to indicate to the Committee why they believed the twelve-month period was too short.

The Chair replied that Vodacom indicated that it was concerned that it would not be able to record the information on its historical customers within that twelve-month period. They have however indicated that they have already commenced that process.

She reminded Members that after the Committee’s public hearings on the Bill, the telecommunication service providers were invited to motivate for their proposal that the period be extended to three years. Both MTN and Vodacom took the Committee up on that invitation and then indicated that a two-year period was possible, but the proposal was not rationally motivated. Cell C then indicated that it would be able to record all the data within 18 months, but that proposal was not fully motivated either. The Committee asked them to substantiate their views, and to include information such as figures on the number of active pre-paid customers on their network, their roll out plan for the registration and collection of data etc. She stated that she then repeated the Committee’s invitation at the meeting on the previous day, and time was now running out for the telecommunication service providers to provide those motivations. The Committee would probably have to have that meeting in a closed session, because it would deal with audited figures of customers’ accounts, etc.

Mr Jeffery asked when the deadline was.

The Chair explained that she had expressed herself very clearly all along that if the telecommunication service providers failed to provide those motivations, the Committee would proceed with the Bill in their absence. She reiterated that she had extended those invitations as far back as June 2006, before Parliament went into recess, and there was thus no excuse for failing to submit the motivations. The Committee would not be waiting for the submissions as the telecommunication service providers bore the onus of providing them. She informed the Committee that Thailand and Hungary managed to compile all the data within just six months, and thus the case being made by the South African telecommunication service providers that it be extended to two or three years was looking increasingly more dire.

She stated that the Committee had been accused in the media of imposing an unreasonable time frame on the telecommunication service provider for the collection of that data. The reality of the matter was that the current time frame proposed in the Bill was twelve months, and the Committee had clearly indicated that unless the telecommunication service providers motivated for an extension of that period, the Committee would adopt the twelve month timeframe. The telecommunication service providers would thus have to prove that they had too many customers to meet the twelve-month deadline. Having said, the Committee had always allowed submissions throughout the entire deliberations stage, but in this case the Committee would have to have a closed meeting due to the sensitive nature of the information.

Clause 5: Insertion of section 62A of Act 70 of 2002
Mr Robertse informed the Committee that the Cell C submission proposed the insertion of this provision. It indicated that the Competition Act precluded telecommunication service providers from determining the tariffs for registration officers. Section 62A was now inserted, which indicated that the Minister of Justice would determine the remuneration of registration officers, across the board.

The Chair asked why the Minister of Justice was referred to, when it dealt with the communications industry. She requested the drafters to get feedback from the Department of Communications on the clause as soon as possible.

Mr Jeffery agreed with the Chair that it should fall within the ambit of the Minister of Communications. He proposed that the provision stipulate ‘after consultation with the Minister of Communications’.

The Chair reiterated her view that it should fall exclusively within the ambit of the Minister of Communications.

Clause 6: Short title and commencement
The Chair sought clarity on the affixing of a commencement date to each section.

Mr Robertse explained that that was his opinion only. It was possible to stipulate in the Bill that the amendments would come into operation on a specific date in particular sections themselves.

The Chair asked Mr Robertse to run that by the State Law Advisors. She indicated that she did not have a problem with including the commencement date as the last subsection in each provision. She asked whether the amendments would have to be promulgated via proclamation.

Mr Robertse answered in the negative. He explained that if the date were to be included at the end of each section, that provision would come into operation with the Bill.

The meeting was adjourned.