FURTHER SUBMISSION ON THE INTERCEPTION AND MONITORING BILL, 2001: NATIONAL PROSECUTING AUTHORITY

Pursuant to our previous appearance before the Portfolio Committee, please accept our further submissions on the above mentioned Bill.

We have submitted comments in respect of the eight delineated areas as previously requested and undertaken by ourselves. These areas include the following:

1. The definition of "serious offences" in light of the confusing cross-references and the need for clarity.

2. The distinction between intercept and monitor in the context of its use in the Bill.

3. Considering the definition of "communication" in respect of Internet activity, from a legal and policy perspective.

4. The wording of clause 2(2) and (3), the latter's potential for abuse by private individuals, other investigators and businesses.

5. Formulation of a clause analogous to section 205 of the Criminal Procedure Act, 1977, in respect of call related data.

6. The purpose for which information are obtained through interception and monitoring orders and extending its use to forfeiture proceedings under the Prevention of Organised Crime Act, 1998.

7. Introducing an evidentiary presumption analogous to section 212 of the Criminal Procedure Act, 1977, to allow for the admission of the entire package of documents on mere production.

8. Creating an offence for tampering with and modifying of cell-phones.

We have submitted our views on the above issues, with the exception of clause 2(2), relating to participating monitoring. In respect thereof we are concerned of the consequences where law enforcement agencies might be excluded from relying on the exception. However we are reviewing various international jurisdictions to make a more meaningful submission.

Finally, let me express my gratitude towards the Portfolio Committee for the opportunity to make further submissions. We are keen to engage in further deliberation processes, should it become necessary.

Kind regards

BULELANI NGCUKA

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

TO : THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT

FROM : THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

SUBJECT : COMMENTS ON INTERCEPTION AND MONITORING BILL, 2001

DATE : 14 SEPTEMBER 2001

 

I again wish to thank the Committee for affording members of my Office the opportunity to submit oral comments regarding the above Bill and to make further written submissions in respect of certain specific aspects of the Bill. The following further comments are hereby submitted.

1. THE DEFINITION OF "SERIOUS OFFENCE" IN CLAUSE 1

1.1 Taking into account the reasons set out in our previous written submissions and certain problems members of the Committee are experiencing with the definition of "serious offence", it is recommended that a separate Schedule be prepared in order to set out the "serious offences".

1.2 Schedule 1 to the Bill, attached hereto as "ANNEXURE A", is proposed. See page 22 of

"ANNEXURE A".

1.3 It is further proposed that the definition of "serious offence" in clause 1 of the Bill be amended. See page 3 of "ANNEXURE A".

2. THE MEANING OF "INTERCEPT" AND "MONITOR"

2.1 As pointed out by some members of the Committee on 29 August 2001, the Bill contains a definition of "monitor", but not of "intercept". The explanation for this may be that clause 5(2) (a) in fact contains a definition of "intercept" in that paragraph (a), inter alia, provides that a member who executes a direction may "take possession" of and "examine" any postal article or "listen" to any communication to which the direction applies. However, the opinion is held that a definition of "intercept" is desirable, because the above description of "intercept" reflects a very narrow interpretation of "intercept".

2.2 Comparative legislation

2.2.1 Without going into any detail, the following are examples of the definition of "intercept":

(a) "the aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of any electronic, mechanical, or other device.".(Section 507, State of New Hampshire, USA)

(b) "to electronically capture, record, reveal, or otherwise access, the signals emitted or received during the operation of a cellular telephone without the consent of the

sender or receiver, by means of any instrument, device or equipment.". (Section 76-6-409.10, Utah Code, USA)

(c) "to hear, record or aid another to hear or record the contents of any wire or oral communication through the use of any intercepting device by any person other than:

A. The sender or receiver of that communication;

B. A person within the range of normal unaided hearing or subnormal hearing corrected to not better than normal; or

C. A person given prior authority by the sender or receiver.".(Section 709, Maine, USA).

(d) "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.".(Section 2510, Title 18, US Code)

(e) "the aural or other acquisition of the contents of any communications through the use of any electronic, mechanical, or other equipment, device or apparatus;".(Section 6 of the Malaysian Communications and Multimedia Act, 1998(Act No. 588 of 1998).

(f) "to electronically capture, record, reveal, or otherwise access, the signals emitted or received during the operation of a cellular telephone without the consent of the sender or receiver thereof, by means of any instrument, device or equipment.". (Section 10-103.1 of the Administrative Code of the City of New York)

(g) "the aural or other acquisition of the contents of an oral, wire, or electronic communication through the use of any electronic, mechanical, or other device, including the acquisition of the contents by simultaneous transmission or by recording;". (Section 390, of the Telegraph and Telephone Systems and Cable Lines Chapter, Alaska Statutes)

(h) "to electronically capture, record, reveal or otherwise access the signals emitted or received during the operation of a cellular telephone by any instrument, device or equipment without the consent of the sender or receiver.".(Section 165.535 of the Oregon Revised Statutes, USA)

(i) "The Wiretap Act, in 18 U.S.C. ¤¤ 2511, protects against unauthorized 'interception of 'electronic communications. By melding the statutory definitions of 'intercept' and 'electronic communication,' the court concluded that 'intercept' means the 'acquisition' of the contents of any 'transfer' of information from sender to recipient, that is, during the course of transmission and before arrival.".(The U.S. District Court for the Eastern District of Pennsylvania ruled on 27 March 2001 in Fraser V. Nationwide Mutual Insurance Co., ED. Pa., No. 98-CV-6726, 3/27/01).

 

(j) "intercept by listening to or recording, by any means, a message passing over a telecommunication network without the knowledge of the person originating, sending or transmitting the message;".(Section 2 of the Telecommunications Act, 1998, of Mauritius)

(k) "listen to, or record by any means, in the course of its transmission, a telecommunications message but does not include such listening or recording where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording, and cognate words shall be construed accordingly. ".(Section 13 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993, Ireland)

(I) "Intercept" means "to seize, catch or carry off on the way from one person or place to another". It means gaining access to information which is in the course of being conveyed or transmitted from one to another.(New Zealand, See http://~~~w.adls.org.nz/media'si s2 .html)

(m) "For the purposes of this section 'intercept' means the aural or other acquisition of the contents through the use of such devices or means as considered necessary.".(The Communication Convergence Bill, 2000, India)

(n) "(2) For the purposes of this Act, but subject to the following provisions of this

section, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he-

(a) so modifies or interferes with the system, or its operation,

(b) so monitors transmissions made by means of the system, or

(c) so monitors transmissions made by wireless telegraphy to or from apparatus

comprised in the system,

as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.".(Regulation of Investigatory Powers Act, 2000, UK.)

2.2.2 Some countries and States have a similar or identical definition for "interception". The

following are examples:

(a) "to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.".(See Chapter 272: Section 99. Interception of wire and oral communications, General Laws of Massachusetts, USA)

(b) "listening to, or recording by any means, or acquiring the substance or purport of, any telecommunications message without the agreement of the person on whose behalf that message is transmitted by the company and of the person intended by him to receive that message.".(Section 98 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993, Ireland)

(c) "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.".(Title III of the Omnibus Crime Control and Safe Streets Act of 1967, Stetson Law)

2.2.3 Only a few countries make use of the term "monitor" or "monitoring". The following definitions are examples:

(a) 'Monitor' means to intercept, access, or inspect an electronic communication. 'Monitor' does not include automatic scanning of an electronic communication by network security software such as firewall and anti-virus programs (See http://www2.mesastate.edu/mis/ msc_ electronic_ communications

.html, Colorado)

(b) "to inspect, review, or retain electronic mail or other computer records in a manner that does not comply with the policies and practices that are disclosed to the employee pursuant to this Section.".(Bill Number: Sb 1822, amended California Bill, text amended in Senate March 27, 2000)

2.2.4 Our research reveals, amongst others, that-

(a) the legislation of most of the States in the USA contains a definition of "intercept";

(b) the definition as contained in section 2510, Title 18, of the US Code is the most popular definition, namely "'intercept' means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.".,

(c) the definitions do not specifically provide for the interception of electronic mail and Internet communications;

(d) the definitions of many States and countries include the recording(in our Bill the monitoring) of communications and do not provide for two separate offences, namely the unlawful interception and monitoring of a communication.

2.2.5 Recommendations

2.2.5.1 In view of the above, it is recommended that the Bill should only provide for the "interception" of communications which will include the monitoring of communications. It is therefore proposed that the following definition of "intercept" be inserted in clause 1 of the Bill:

"intercept" means the aural or other acquisition of the contents of any communications through the use of any means, including any electronic, mechanical, or other equipment device or apparatus and includes the monitoring of any such communication by means of a monitoring device and when used as a noun has a corresponding meaning'

(See clause 1, page 2 of "ANNEXURE A")

2.2.5.2 The opinion is held that the above definition will include-

(a) the interception and monitoring(and any other form of acquisition) of any communication;

(b) the interception and monitoring of electronic mail and Internet communications;

and

(c) the interception and monitoring of communications through the use of any means.

2.2.5.3 The above recommendation necessitates various consequential amendments. We have included these consequential amendments in the Bill attached hereto as "ANNEXURE A". See, for example, the following amendments:

(a) In clause 1, to insert subclauses (2) to (4), whilst the existing clause becomes subclause (1).

(b) To substitute clause 2. See page 6 of the Bill, "ANNEXURE A".

(c) To substitute clause 4. See pages 7 and 8 of the Bill, "ANNEXURE A".

3. INTERCEPTION OF INTERNET COMMUNICATIONS

3.1 What is "Internet"?

3.1.1 In general terms, "Internet" can be described as follows1:

(a) Internet is the communication system to connect with big information systems and with all the users of this media in the world. Through your computer, you can consult millions of pages, books, magazines, newspapers, articles, known and unknown persons' letters, statistics, maps, show billboards, works of art, directories, airplanes itinerary, trains, buses, ships, etc.

(b) Internet is the digital network that communicates millions of users, companies, industries, educational and government institutions around the world by computing technology.

(c) Internet has revolutionized the way that the humans communicate with each other. It has modified the way of doing business and work in the whole world. You will be able to reserve a hotel room, to buy travels, concerts or museum tickets, even to select menus for dinner, or to buy the article you wish; normally, in a few hours you will be able to receive an answer to any questions and to talk with any person you wish.

3.1.2 In South Africa, in a notice of intention to make regulations in terms of section 96 read with section 33(2) of the Telecommunications Act, 1996(Act No. 103 of 1996), relating to certain types of telecommunication services or activities which may be conducted without a licence, "Internet" has been defined as follows:

"a global network of interoperable packet switched data networks and other interactive computer services designed for, but not limited to, educational, research, informational or entertainment purposes- accessed by a person with a computer and a modem directly via an Internet access provider (Tier 1 access) or indirectly via an Internet service provider (Tier 2 access)".

3.1.3 In other countries "Internet" has, amongst others, been defined as follows:

(a) "collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to such protocol, to

communicate information of all kinds by wire or radio".2 (Our emphasis)

(b) "the combination of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected world wide network of computer networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocol, to transmit information3.

(c) "Internet" means the international computer network consisting of federal and non-federal, interoperable, packet -controlled, switched data networks.4

(d) The Australian Industry Association, in its Industry Code of Practice for the Internet Industry, defines "Internet" as follows:

"'Internet' means the public network of computer networks known by that name which enables the transmission of information between users or between users and a place on the network.". (Our emphasis)

(e) "the international computer network of both federal and non-federal interoperable packet switched data networks".5

(f) The Internet Child Pornography Prevention Bill (C-231), introduced during 1999 in Canada, defines "Internet" as follows:

"'Internet' means the international computer net known by that name".

3.1.4 In South African legislation, the Internet has been recognized as a communication facility. In this regard section 59 of the Postal Services Act, 1998(Act No. 124 of 1998), provides as follows:

"Subject to the Telecommunications Act, 1996 (Act 103 of 1996), the Postal Company may carry electronic mail, including the Internet, and provide electronic addresses.".(Our emphasis)

Furthermore, during 1999, the following paragraph was added to the definition of "publication" in section 1 of the Films and Publication Act, 1996(Act No. 65 of 1996):

"(i) any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet;".(Our emphasis)

3.1.5 Conclusion

It is globally recognized that the Internet is a communication facility.

3.2 Interception of communications via the Internet: Whether there is a need for interception or not?

3.2.1 Internationally there is fear that recently developed technology, called "anonymous remailer", together with "encryption programmes", will undermine long-established laws designed to protect the ownership of information. Experts hold the view that with this combination of technologies, people will be able to publish any confidential information, without the fear of being caught. An "anonymous remailer" is a computer connected to the Internet that forwards electronic mail or files to other addresses on the network. But it also strips off the "header" part of the messages, which shows where they came from and who sent them. All the receiver can tell about a message's origin is that it passed through the remailer. A Swiss expert remarks as follows in respect of remailers:

"But the use of remailers can also make it impossible to enforce national laws. How can copyright be protected, for example, if anything that can be scanned into a computer can be broadcast anonymously to millions over the Internet? How can a judge ensure that prejudicial information does not leak from a court if anyone in the public gallery can distribute those details from the nearest terminal without fear of being caught? The inability to trace the source of information may foil the police on the trail of a pornographer, and leave companies struggling to deter a disgruntled employee or client from revealing commercial secrets." 6

And further:

"Correspondents could further cover their tracks by sending messages through chains of remailers. People often build up relationships in cyberspace without meeting, but by using cryptography and remailers they might not even know who it is they are dealing with. One might request military or industrial secrets; the other would send them, along with the number of a Swiss bank account for the payoff. If the police noticed the messages and were able to crack the code and trace one of the pair, that person would be unable to name the other, even if he or she wanted to.

Some are worried by this aspect of remailers. 'They envisage them being used for what I call the Four Horsemen of the Internet. That is - terrorism, child pornography, money laundering and drugs,' says Timothy May, a Californian cryptography and computing consultant.".7

3.2.2 In his article Cryptography for encryption, digital signatures and authentication, Robin White makes the following statement:

"The new cryptographic and communication technologies clearly make it possible for criminals to evade law enforcement attempts at monitoring their communication. They also enable criminals in government - corrupt officials - to escape detection far easier than previously.". 8

3.2.3 In its Telecommunications Interception Policy Review - May 1999, the Australian Government pointed out that a recent study of the use of encryption to disguise criminal activity, amongst others, found that:

"Criminals and terrorists are using encryption and other advanced technologies to hide their activities. Indications are that use of these technologies will continue and expand, with a growing impact on law enforcement. Although the majority of investigations we heard about were not stopped by encryption, we heard about a few cases that were effectively derailed or put on hold by encryption. Even when the encryption was broken, however, it delayed investigations, sometimes by months or years, and added to their cost, in a few cases costing agencies hundreds of thousands of dollars to crack open encrypted files.".

In paragraphs 7.3.8 and 7.3.9 of the Policy Review, the need for immediate action is motivated as follows:

7.3.9 It is difficult to predict the extent to which encryption will penetrate the telecommunications industry but given the rate at which new technologies are being introduced, the approach of the FBI in preparing for the worst would seem to be a prudent one. The AFP, for example, is acting on the basis that encryption will become more pervasive. The AFP observes that major software manufacturers are now providing high level encryption facilities simply at the 'click of a button', and it is reasonable to expect that organised criminal elements Will also use such methodology to defeat the lawful interception of data communications.

7.3.10 The primary objective of law enforcement in conducting telecommunications interception is to gain evidence of criminal activity. Whilst there is publicly available evidence that low-level encryption may be defeated, the AFP argue that the major benefit to law enforcement via the use of telecommunications interception is that the product of that interception is available real-time, thus enabling informed operational tactical decision making. The AFP believe that the disadvantage arising from the decryption of electronic product at a later date is the loss of immediacy in terms of use of that product, but remain of the view that an appropriate decryption capability must be maintained by law enforcement.".(Our emphasis)

3.2.4 During 1997 the OECD accepted the Guidelines for Cryptography Policy. The Secretariat has prepared a Report on Background and Issues of Cryptography Policy to explain the context for the Guidelines for Cryptography Policy. In the Report the Secretariat, amongst others, pointed out that:

"Although there are legitimate governmental, commercial and individual needs and uses for cryptography, it may also be used by individuals or entities for illegal activities, which can affect public safety, national security, the enforcement of laws, business interests, consumer interests or privacy. Governments, together with industry and the general public, are challenged to develop balanced policies to address these issues.".(Our emphasis)

3.2.5 On 13 September, 1999, the White House published an analysis on the Cyberspace Electronic Security Act of 1999 (CESA). The document, inter alia, contains the following introduction:

"The Cyberspace Electronic Security Act of 1999 (CESA) updates law enforcement and privacy rules for our emerging world of widespread cryptography, which is a tool to protect the confidentiality of wire and electronic communications and stored data. Cryptography has many legitimate and important uses. It also is increasingly used as a means to facilitate criminal activity, such as drug trafficking, terrorism, white collar crime, and the distribution of child pornography. The Act responds to both the legitimate and unlawful uses of cryptography, building a legal infrastructure for these emerging issues.".

3.2.6 Conclusion

The Internet, being a communication facility, has various benefits, but may be used by individuals and syndicates to commit crime. It is important for Government to develop balanced legislation in order to protect business interests, every person's privacy, public safety, and national security.

3.3 Interception of communications via the Internet: International approach

3.3.1 Many countries, including France, Germany, the Netherlands, Sweden, the United States of America, Canada and Australia, require their telecommunications providers to maintain an interception capability. Holland provides one example of similar requirements in the world of the Internet. The Dutch Telecommunications Act of 1998 provides a legal framework for interception by Internet service providers. The service providers had until April 2001 to install an interception capability.

3.3.2 The Russian Federal Service (previously known as the KGB) has complete access to the Internet in Russia. Russian Internet Service Providers are obliged to equip their networks with a monitor and to connect the ISP with a high-speed fibre-optic link to the Service's headquarters. By contrast, Japanese legislation on the interception of Internet communications appears somewhat limited. The Communications Interception Law grants the police the right to access e-mail accounts in the course of their investigations into 'serious crimes'. The law requires, amongst others, that the service provider be present throughout the

time when the police monitor e-mail accounts.9

3.3.2 In May 1998, the EU Justice and Home Affairs Council adopted formal conclusions on encryption and law enforcement. Whilst acknowledging that encryption has substantial benefits for e-commerce and personal privacy, the Council recognised that lawful access to encryption keys by law enforcement agencies may be necessary to protect citizens from crime and terrorism. As stated above, the OECD guidelines on cryptography policy contain similar pronouncements. These guidelines contain, amongst others, the following specific principles:

(a) "National cryptographic policies may allow lawful access to plaintext, or cryptography keys, of encrypted data.".

(b) "Where access to the plaintext, or cryptography keys, of encrypted data is requested under lawful process, the individual or entity requesting access must have a legal right to the possession of the plaintext, and once obtained the data must only be used for lawful purposes.".

3.3.3 During 1998 Germany changed its laws to make broad wiretapping and interception of Internet and other data-communication possible. Germany changed its Constitution in the beginning of 1998 so as to provide for interception of Internet communications.

3.3.4 In the UK, the Regulation of Investigatory Powers Bill, was introduced in the Committee Stage in the House of Lords on 12 June 2000. Part I of the Bill, contains the interception provisions, including lawful interception of Internet services. Parts II and III of the Bill, contain intrusive surveillance and provisions for decryption of lawfully acquired protected information. The UK Government argues that interception is vital to prevent crime. There are, however, strict guidelines governing interception which can only take place in the following circumstances:

(a) If it is in the interests of national security.

(b) If it is for the purpose of detecting or preventing serious crime.

(c) If it is for the purpose of safeguarding the economic well-being of the UK.

3.3.5 In Australia, in terms of the Telecommunications (Interception) Act ,1979, it is an offence for any person to intercept a communication passing over a telecommunications system. Recently questions arise-

(a) whether e-mail is a "communication"?; and

(b) whether the Internet constitutes a "telecommunications system"?

A "communication" is defined in the Act to include a message and any part of a message whether-

(a) in the form of-

(i) speech music or other sounds;

(ii) data;

(iii) text;

(iv) visual images, whether or not animated; or

(v) signals; or

(b) in any other form or combination of forms.".

In an article Privacy Pro tection for Internet E-mail in Australia, by Kent Davey, the opinion was held that E-mail would clearly be a "communication" as it may consist of text, images, sound and/or animation. In respect of the question whether the Internet constitutes a "telecommunications system", the author explains as follows:

"The Interception Act defines a 'telecommunications system to mean 'a telecommunications network that is within Australia ... and includes equipment, a line or other facility that is connected to such a network and is within Australia'. A 'telecommunications network' is defined in the Act to mean 'a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both'. The effect of these two definitions would be that the Australian Internet and all computer networks within Australia including Local Area Networks and Wide Area Networks would be considered to be 'telecommunications systems whether or not they are connected to a telecommunications network operated by a carrier. Computers linked to the Australian Internet would also be part of a 'telecommunications system' being equipment connected to a telecommunications network.".

The Australian legislation therefore also provides for the interception and monitoring of electronic mail and Internet communications.

3.3.6 As mentioned in paragraph 1.2.5 supra, legislation providing for the interception of electronic mail and Internet( the Cyberspace Electronic Security Act of 1999), was already introduced in the USA during 1999. It is unknown whether this Act has been approved.

3.3.7 On 11 July 2001, the European Parliament (EP) Civil Liberties Committee approved a report by MEP, Marco Cappato. The report is, inter alia, in favour of a strict regulation of law enforcement authorities' access to personal data in the electronic communications sector. In this regard article 15 of the Report provides as follows:

"Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1) to (4), and Article 9 (confidentiality ofcommunication traffic data and location data) of this Directive when such restriction constitutes a necessary, appropriate, proportionate and limited in time measure within a democratic society to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. These measures must be entirely exceptional, based on a specific law which is comprehensible to the general public and be authorised by the judicial or competent authorities for individual cases. Under the European Convention on Human Rights and pursuant to rulings issued by the Court of Human Rights, any form of wide-scale general or exploratory electronic surveillance is prohibited.".

3.3.8 Conclusion

Legislation providing for the interception of electronic mail and Internet communication has been introduced in various countries. Many other countries are at present considering the enactment of such legislation. The principle is also supported by the EU.

3.4 Recommendations

3.4.1 In view of the above, it is recommended that provisions should be included in the Bill in order to provide for the interception and monitoring of electronic mail and Internet communications. Such legislation should be subject to the strict requirements contained in the Bill.

3.4.2 To provide for the above proposal, the following definition of "communtcation is recommended:

"communication" includes a conversation or a massage, and any part thereof, whether-

(a) in the form of-

(i) speech, music or other sounds;

(ii) data;

(iii) text;

(iv) visual images, whether or not animated; or

(v) signals; or

(b) in any other form or in any combinations of forms, including electronic mail and the international computer net known by that name Internet:".

(See pages 1 and 2 of the Bill, "ANNEXURE A".)

Furthermore, it is recommended that the definition of "telecommunication service" be amended. After paragraph (d), insert the following paragraph, whilst paragraph (e) becomes paragraph (f):

"(e) electronic mail and the international computer net known by that name

Internet:

 

(See page 5 of the Bill, "ANNEXURE A".)

4. THE WORDING OF CLAUSE 2(2) AND (3): WHETHER OPEN FOR ABUSE?

4.1 The principles contained in clause 2(2) have been accepted internationally. However, it is conceded that the provisions contained in clause 2(2) and (3) are vague and probably open for abuse. The question relating to participating monitoring and interception is problematic. In principle we agree that participating monitoring by law enforcement agencies should be regulated. Preferably by way of directives to be issued by the National Director of Public Prosecutions. Consideration should be given to provide for the determination of such directives after consultation with the law enforcement agencies concerned and after Parliament has considered such directives.

4.2 We are at present investigating the matter further and would like to participate in any further discussions relating to the matter. We would come back to the Committee in this regard.

4.3 In view of the above, we only propose the following amendments at this stage:

(a) Delete the words "and without the knowledge or permission of the other party to that communication

(b) Add a new subdause (4) in order to provide for requirements similar to those contained in the UK legislation, namely, that a person may only intercept a communication in terms of subsection (3) if-

(i) such interception is effected solely for the purpose of interception or keeping

a record of communications relevant to that person's business:

(ii) the telecommunication system in question is provided for use wholly or

partly in connection with that business; and

(iii) that person has made all reasonable efforts to inform every person who may use the telecommunication system in question that communications transmitted by means thereof may be intercepted.

(See pages 6 and 7 of the Bill, "ANNEXURE A".)

5. CLAUSE 9: CALL-RELATED INFORMATION: APPLICATION OF PROVISIONS SIMILAR TO SECTION 205 OF CRIMINAL PROCEDURE ACT, 1977

5.1 As indicated during our oral submissions, the Committee may consider amending clause 9 so as to built in requirements similar to those provided for in section 205 of the Criminal Procedure Act, 1977.

5.2 Section 205 of the Criminal Procedure Act, 1977, provides as follows:

"(1) Ajudge of the supreme court, a regional court magistrate or a magistrate may, subject to the provisions of subsection 4, upon the request of an attorney-general or a public prosecutor authorized thereto in writing by the attorney-general, require the attendance before him or any other judge, regional court magistrate or magistrate, for examination by the attorney-general or the public prosecutor authorized thereto in writing by the attorney-general, of any person who is likely to give material or relevant information as to any alleged offence, whether or not it is known by whom the offence was committed: Provided that if such person furnishes that information to the satisfaction of the attorney-general or public prosecutor concerned prior to the date on which he is required to appear before a judge, regional court magistrate or magistrate, he shall be under no further obligation to appear before ajudge, regional court magistrate or magistrate.". (Our emphasis)

5.3 Taking into account the provisions of section 205, we are therefore of the opinion that clause

9 should be amended to provide for the following:

(a) A "request" or "direction" to a service provider may only be directed after the mentioned functionaries have applied for such a direction to "a judge of the High Court, a regional court magistrate or a magistrate".

(b) The judge, regional court magistrate or a magistrate may only grant such a direction if he or she is satisfied that there are reasonable grounds to believe that the gathering of call-related information is necessary in an investigation relating t~

(i) the commission or alleged commission of a serious offence, "whether or not it is known by whom the offence was committed"; or

(ii) a threat or alleged threat to public safety or national security.

5.4 In view of the above, it is recommended that clause 9 be amended as indicated on page 12 of the Bill.("ANNEXURE A")

6. EXTENSION OF INTERCEPTION PROVISIONS TO CIVIL PROCEEDINGS UNDER THE PREVENTION OF ORGANISED CRIME ACT, 1998

6.1 The opinion is held that the Bill should also provide for the interception of communications relating to the dealing in property contemplated in section 38(2) (a) and (b) of the Prevention of Organised Crime Act, 1998. In other words property in respect of which there are reasonable grounds to believe that the property concerned is an instrumentality of an offence referred to in Schedule 1 of that Act or that such property is the proceeds of unlawful activities. It is proposed that clauses 4 and 13 be amended to provide for the interception of such communications. See clause 9(2), page 12 of "ANNEXURE A".

6.2 Mr Willy Hofmeyr, Deputy National Director of Public Prosecutor, will in an additional submission to the Committee provide further motivation for this proposal.

7. TO PROVIDE FOR A PRESUMPTION IN TERMS OF SECTION 212 OF THE CRIMINAL PROCEDURE ACT, 1977: JUDGE1S CERTIFICATE

7.1 In order to save time and prevent the judge, regional magistrate or magistrate issuing the directions in terms of section 4 and 9 of the Bill to spent hours in court, it is recommended that a similar provision to section 212 of the Criminal Procedure Act, 1977, be inserted in the Bill. See the proposed new clause 17 in "ANNEXURE A".

8. CREATION OF FURTHER OFFENCES: MODIFICATION AND TAMPERING WITH CELL-PHONES AND INTERCEPTION EQUIPMENT

8.1 According to information received, it happens frequently that stolen cell-phones are modified and tampered with so as to enable the "new owner" to use the cell-phone in spite of the cell-phone being blacklisted. This unlawful practice will make it very difficult to apply the interception and monitoring provisions of the Bill. The customer may allege that his or her cell-phone was stolen and it will be difficult to prove the contrary.

8.2 It is recommended that an offence be included in the Bill in order to prohibit such unlawful modifications and tampering. We also recommend that a provision be included so as to prohibit tampering with interception and monitoring equipment. It is proposed that the following subdause be added to clause 15 of the Bill:

"(5) Anv person who without just cause shown-
(a) modifies or tampers, or allows any other person to modify or tamper, with a cellphone of which he or she is not the lawful owner or possessor:

(b) tampers, or allows any other person to tamper. with any interception or monitorin~ equipment, device or apparatus installed or utilised in terms of this Act.

is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceedinit seven years or to both a fine and such imprisonment.

BULELANI NGCUKA

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS


14 September 2001