SUBMISSION BY THE SOUTH AFRICAN POLICE SERVICE ON THE INTERCEPTION AND MONITORING BILL, 2001
TO THE PORTFOLIO COMMITTEE FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT

CHAIRPERSON,

THANK YOU FOR THE OPPORTUNITY TO ADDRESS THE COMMITTEE ON THE INTERCEPTION AND MONITORING BILL.

THE SOUTH AFRICAN POLICE SERVICE SUPPORTS THE BASIC PRINCIPLES IN THE BILL. IN VIEW OF THE SCOURGE OF SERIOUS CRIME IN THE COUNTRY, THE BILL IS URGENTLY NEEDED BY LAW ENFORCEMENT AGENCIES.

REFERENCE HAS BEEN MADE TO THE BILL AS THE "BIG BROTHER BILL", AS IF LAW ENFORCEMENT HAS THE DESIRE TO PRY INTO THE PRIVATE LIVES OF ORDINARY CITIZENS ON A MASSIVE SCALE. NOTHING COULD BE FURTHER FROM THE TRUTH. THE INTERCEPTION AND MONITORING OF COMMUNICATIONS IS AN EXCEPTIONAL, AND ALTHOUGH EFFECTIVE, LABOR INTENSIVE AND EXPENSIVE INVESTIGATIVE TOOL. IT IS A METHOD OF LAST RESORT, WHEN ORDINARY INVESTIGATION METHODS ARE UNEFFECTIVE.

THE CONTROLLED INTERCEPTION AND MONITORING OF COMMUNICATIONS IS AN INVESTIGATIVE TECHNIQUE WHICH IS APPLIED IN ALL COUNTRIES, INCLUDING THE MOST OPEN AND DEMOCRATIC SOCIETIES, AND THERE IS NO QUESTION ABOUT THE CONSTITUTIONALITY OF THE BILL IN THAT RESPECT.

WORLDWIDE, CRIMINALS, INCLUDING INTERNATIONAL GANGS AND TERRORISTS, ARE TAKING ADVANTAGE OF ALL MODERN FORMS OF COMMUNICATIONS, NOT ONLY TO COMMUNICATE, IN ORDER TO ORGANIZE OR CONSPIRE TO COMMIT CRIMES, BUT ALSO IN THE EXECUTION OF CRIMES, SUCH AS COMPUTER CRIMES AND SERIOUS ECONOMIC OFFENCES AND FRAUD.

CHAIRPERSON, DURING THE SUBMISSIONS PRESENTED BY THE RESPECTIVE INSTITUTIONS, SPECIFIC QUESTIONS WERE POSED TO BE ADDRESSED BY LAW ENFORCEMENT AND AS AN INTRODUCTION, COMMENTS ARE GIVEN ON THOSE ISSUES.

DEFINITION OF "COMMUNICATION"- INTERNET
E-MAIL IS NOT THE ONLY METHOD OF INTERNET COMMUNICATIONS. CONVERSATIONS CAN BE MADE VIA INTERNET, USING A COMPUTER IN THE SAME MANNER AS A TELEPHONE. THE SUBMISSION IS MADE THAT INTERNET COMMUNICATIONS SHOULD BE INCLUDED IN THE DEFINITION.

THE INCLUSION OF THE WORD "SIGNALS" IN THE DEFINITION PROBABLY ENSURES THAT THE ACT OF ACCESSING A WEBSITE BRINGS INTERNET COMMUNICATIONS WITHIN THE AMBIT OF THE DEFINITION OF "COMMUNICATION."

DEFINITION OF "SERIOUS OFFENCE"
THE PRESENT WORDING OF THE DEFINITION OF SERIOUS OFFENCE IN THE BILL PROBABLY IS A MIXTURE OF THE EXISTING DEFINITION AND ADDED THERETO THE INPUTS FROM THE RESPECTIVE LAW ENFORCEMENT AGENCIES, AND IT IS AGREED THAT SOME ATTENTION SHOULD BE GIVEN TO STREAMLINE IT. THE CHAIRPERSON HAS ASKED FOR A SPECIFIC SUGGESTION IN THIS REGARD. IT WOULD BE DIFFICULT TO MAKE AN EXHAUSTIVE LIST OF SERIOUS OFFENCES. THE OPINION IS HELD THAT REFERENCE SHOULD BE MADE TO CATEGORIES OF OFFENCES. IN ADDITION, IT WOULD BE NECESSARY TO CREATE A BROAD CATEGORY, LINKED TO A SENTENCE OF IMPRISONMENT, AS IN SCHEDULE 1 OF THE CRIMINAL PROCEDURE ACT, BUT WITH A LONGER TERM, SUCH AS ONE YEAR IMPRISONMENT.

THE FOLLOWING MODEL, WHICH COULD CERTAINLY BE REFINED, IS PROPOSED:
"‘SERIOUS OFFENCE’ MEANS ANY OFFENCE-
(A) WHICH INVOLVES DRUGS, WEAPONS OF WAR, FIREARMS, AMMUNITION, EXPLOSIVES, DIAMONDS, PRECIOUS METALS AND STONES, MOTOR VEHICLES, PROTECTED AND ENDANGERED WILDLIFE SPECIES AND FLORA, MONEY-LAUNDERING, FRAUD, ROBBERY AND THEFT; AND WHICH IS COMMITTED IN AN ORGANIZED FASHION.
(B) RELATING TO THE SECURITY OF THE REPUBLIC;
(C) WHICH MAY DAMAGE OR BE DETRIMENTAL TO THE INTERNATIONAL RELATIONS OF THE REPUBLIC;
(D) RELATING TO THE ECONOMY OF THE REPUBLIC;
(E) RELATING TO CORRUPTION;
(F) RELATING TO THE DEATH OF, OR INFLICTION OF GRIEVOUS BODILY HARM TO ANY PERSON;
(E) FOR WHICH A PERSON, UPON CONVICTION, MAY BE SENTENCED TO IMPRISONMENT FOR A PERIOD OF ONE(?) YEAR OR LONGER.".

PARTICIPANT MONITORING (CLAUSE 2(2)
THERE IS A NEED FOR THE RECORDING OF CONVERSATIONS OF POLICE AGENTS FOR CORROBORATION OF THEIR EVIDENCE ON ENTRAPMENT AND UNDERCOVER OPERATIONS. ENTRAPMENT AND UNDERCOVER OPERATIONS ARE RECOGNIZED AND REGULATED IN TERMS OF SECTION 252A OF THE CRIMINAL PROCEDURE ACT. DURING BOTH UNDERCOVER OPERATIONS AND ENTRAPMENT, POLICE AGENTS OR TRAPS ARE USED. TRANSACTIONS ARE SOMETIMES ARRANGED AT SHORT NOTICE AND AS A RESULT OF DISTRUST FROM THE SIDE OF THE CRIMINALS, THE POLICE AGENT OR TRAP HAS TO CONCLUDE THE TRANSACTION ALONE. THE IRONY IS THAT THE AGENT IS ALLOWED TO TESTIFY IN DETAIL ABOUT SUCH CONVERSATION IN COURT, BUT HE IS NOT ALLOWED TO PRESENT A TAPE RECORDING, MADE BY HIMSELF, OF HIS CONVERSATION WITH THE SUSPECT, WITHOUT HAVING OBTAINED A JUDGE’S DIRECTION BEFOREHAND.

APPOSED TO THIS, PRIVATE PERSONS MAY RECORD SUCH CONVERSATIONS WITHOUT EXPOSING THEMSELVES TO PROSECUTION.

IT WOULD ASSIST LAW ENFORCEMENT IF POLICE AGENTS AND TRAPS BE ALLOWED TO MONITOR(RECORD) CONVERSATIONS IN A PARTICIPANT MONITORING SITUATION DURING ENTRAPMENT AND UNDERCOVER OPERATIONS WHICH ARE AUTHORIZED IN TERMS OF SECTION 252A OF THE CRIMINAL PROCEDURE ACT, AND GUIDELINES OF DIRECTORS OF PUBLIC PROSECUTIONS.
THERE IS FURTHERMORE A NEED IN EXCEPTIONAL CASES TO MONITOR CONVERSATIONS WITH THE EXPLICIT PERMISSION OF ONE OF THE PARTIES TO THE CONVERSATION, FOR EXAMPLE IN CASES OF EXTORTION OR KIDNAPING.

THE NEED FOR LEGISLATIVE SANCTION OF PARTICIPANT MONITORING WITHOUT A DIRECTION WILL BE ALLEVIATED TO SOME EXTEND BY THE CREATION OF THE URGENT PROCEDURE CREATED IN THE BILL, FOR OBTAINING SUCH A DIRECTION. SUCH AN URGENT PROCEDURE HAS PROVED IN PRACTICE TO BE NECESSARY NOT ONLY IN RESPECT OF ENTRAPMENT OR UNDERCOVER OPERATIONS, BUT ALSO IN LIFE-THREATENING SITUATIONS.

FURTHERMORE, THE QUESTION OF ALLOWING PARTICIPANT MONITORING, SHOULD BE VIEWED AGAINST THE PROPOSAL, FURTHERON RELATING TO CONTROL OVER MONITORING EQUIPMENT. ALLOWING PARTICIPANT MONITORING IN GENERAL AND NOT ONLY FOR LAW ENFORCEMENT PURPOSES, WOULD OPEN ARGUMENTS FOR POSSESSION OF SURREPTITIOUS MONITORING EQUIPMENT.

MONITORING OF COMMUNICATIONS BY BUSINESSES/EMPLOYEES. (CLAUSE 2(3)
REFERENCE IS MADE TO THE SUBMISSION OF THE SOUTH AFRICAN POLICE SERVICE. IN LINE WITH THE LEGAL POSITION IN BRITAIN, IT IS REQUESTED THAT THE MONITORING OF COMMUNICATIONS OF EMPLOYEES BY EMPLOYERS ON INTERNAL TELEPHONE SYSTEMS BE PROPERLY REGULATED, AND THAT GOVERNMENT INSTITUTIONS BE INCLUDED. IN TERMS OF THE PROTEA V WAINER CASE, IT IS, UNDER CERTAIN CIRCUMSTANCES, ALLOWED FOR EMPLOYERS TO MONITOR THE CONVERSATIONS OF EMPLOYEES, ON THE TELEPHONE SYSTEM OF THE EMPLOYER. IT IS ALSO COMMON PRACTICE IN MANY BUSINESSES WHERE TRANSACTIONS ARE CONCLUDED OVER THE TELEPHONE , SUCH AS INSURANCE, SHARES, BOOKINGS FOR AIRPLANE TICKETS, ETC, THAT SUCH TRANSACTIONS ARE RECORDED AS THE ONLY RECORD OF THE TRANSACTIONS AND TO PROTECT THE BUSINESS. THIS ASPECT IS TO SOME EXTENT ADDRESSED IN CLAUSE 2(3) OF THE BILL. IT IS REQUESTED THAT THE MATTER BE REGULATED IN MORE DETAIL ALONG THE LINES OF THE BRITISH LEGISLATION, WHICH REQUIRES INTER ALIA THAT THE NECESSARY STEPS BE TAKEN IN ORDER THAT ALL USERS OF SUCH A SYSTEM BE INFORMED BEFOREHAND THAT COMMUNICATIONS MAY BE MONITORED. THE CIRCUMSTANCES UNDER WHICH SUCH COMMUNICATIONS MAY BE MONITORED, SHOULD ALSO BE SPELLED OUT, IN LINE WITH THE BRITISH LEGISLATION. IT IS REQUESTED THAT, AS IN BRITAIN, IT SHOULD BE CLEARLY STATED THAT SUCH MONITORING IS ALSO ALLOWED IN GOVERNMENT INSTITUTIONS. THIS WILL CURB THE MISUSE OF TELEPHONES, SERVE TO COUNTER ESPIONAGE AND CURB CORRUPTION. IN BRITAIN, PROVISION IS SPECIFICALLY MADE FOR MONITORING WITHOUT A WARRANT, IN THESE CIRCUMSTANCES, AS WELL AS CONSENSUAL MONITORING BY MEANS OF CONSENT OF ONE OF THE PARTIES TO A COMMUNICATION.

IT IS, HOWEVER, REALIZED THAT THE QUESTION OF THE MONITORING OF COMMUNICATIONS OF EMPLOYEES IS A SENSITIVE ISSUE AND THE WARNING BY THE JUDGE IN THE PROTEA V WAINER CASE SHOULD BE KEPT IN MIND:
THE EMPLOYER WHO ENGAGES IN THIS SORT OF ACTIVITY CAN HARDLY EVER CONFINE ITSELF TO UNCOVERING UNLAWFUL CONDUCT. IT NOT ONLY PUTS ITS RELATIONSHIP WITH ITS STAFF AT SERIOUS RISK BUT ALSO EXPOSES ITSELF TO THE CRIMINAL PENALTIES TO WHICH I HAVE ALREADY REFERRED, POSSIBLE PROSECUTION AT COMMON LAW FOR CRIMEN INIURIA, AND AN ACTION FOR DAMAGES BY THE EMPLOYEE. ". (P610A-E)
RECOGNIZING SUCH A RIGHT OF AN EMPLOYER WILL ALSO PROVIDE PRIVATE SECURITY COMPANIES SCOPE FOR THEIR ACTIVITIES AND MIGHT PROVIDE A PRETEXT FOR THE INSTALLATION OF MONITORING DEVICES WHICH COULD BE MISUSED FOR INDUSTRIAL ESPIONAGE OR ILLEGAL MONITORING OF COMMUNICATIONS FOR OTHER PURPOSES AS INTENDED BY THE LEGISLATION.

WHAT IS THEREFORE PROPOSED IS REGULATED MONITORING OF THE TELEPHONE SYSTEM, WITH THE KNOWLEDGE OF THE PARTIES INVOLVED AND NOT SURREPTITIOUS MONITORING BY MEANS OF "BUGS" OR SIMILAR DEVICES.

IT SHOULD ALSO BE KEPT IN MIND THAT IN SOME BUSINESSES IT IS A COMMON BUSINESS PRACTICE TO LOG CALLS RELATING TO TRANSACTIONS ON THEIR INTERNAL COMMUNICATIONS SYSTEM FOR BUSINESS REASONS. IN THE POLICE SERVICE DISTRESS CALLS ON THE 10111 LINE ARE LOGGED FOR OPERATIONAL PURPOSES. IT IS IMPORTANT THAT BUSINESSES WHICH RESORT TO THIS PRACTICE, SHOULD GIVE A WARNING ON THE TELEPHONE SYSTEM THAT CALLS MAY BE RECORDED OR LOGGED.

CALL RELATED INFORMATION (CLAUSE 9)
CALL-RELATED INFORMATION IS A PARTICULAR USEFUL INVESTIGATIVE TOOL, THE DETAILS AS HAVE BEEN COVERED IN THE FIRST BRIEFING SESSION. IT IS CLEAR THAT IN MANY INSTANCES CASES CAN BE SOLVED WITHOUT THE MONITORING OF COMMUNICATIONS, BY USING ONLY CALL RELATED INFORMATION. THERE IS THEREFORE A NEED FOR OBTAINING CALL-RELATED INFORMATION WITHOUT ACTUAL MONITORING OF COMMUNICATIONS.

IF CLAUSE 9 COULD BE REFORMULATED, THERE WOULD NOT BE AN OBJECTION TO REMOVE THE PROVISION IN CLAUSE 9(1)(B) THAT CALL RELATED INFORMATION MAY BE REQUESTED BY AN ASSISTANT-COMMISSIONER OR OFFICIAL ON THE SAME LEVEL.

IT SHOULD BE SPECIFICALLY PROVIDED THAT ONGOING CALL-RELATED INFORMATION MAY BE OBTAINED BY MEANS OF SECTION 205 OF THE CRIMINAL PROCEDURE ACT.

IN SOME INSTANCES, IT MIGHT BE NECESSARY TO MONITOR COMMUNICATIONS AS WELL AS TO RECEIVE THE CALL RELATED INFORMATION OF THE SUSPECT’S COMMUNICATION. IT WOULD NOT BE EXPEDIENT TO THEN OBTAIN A SECTION 205 WARRANT AS WELL AS A DIRECTION FROM A JUDGE, WHILST THE JUDGE HAVE TO CONSIDER THE APPLICATION FOR MONITORING. IT COULD THEN BE PROVIDED IN CLAUSE 4 IN A NEW SUBCLAUSE (7) THAT A JUDGE MAY, IF SO REQUESTED AND IF MOTIVATED IN AN APPLICATION FOR INTERCEPTION AND MONITORING, ALSO DIRECT THAT THE CALL-RELATED INFORMATION IN RESPECT OF THE COMMUNICATIONS FOR WHICH THE DIRECTION IS ISSUED, BE PROVIDED BY THE SERVICE PROVIDER, AND THAT THE SERVICE PROVIDER SHALL BE OBLIGED TO PROVIDE THE SAME, UPON PRODUCTION OF THE DIRECTION.
REGISTRATION OF PREPAID SERVICES (CLAUSE 11(3)(B))
FROM A LAW ENFORCEMENT PERSPECTIVE, IT IS DEEMED ABSOLUTE ESSENTIAL THAT PREPAID SERVICES SHOULD BE REGISTERED. IT IS ACCEPTED THAT IT WILL HAVE TO BE PHASED IN, BUT THE PROCESS SHOULD START AS SOON AS POSSIBLE. A DOCUMENT ORIGINATING FROM THE AUSTRALIAN COMMUNICATIONS AUTHORITY WHICH SPELLS OUT THE OBLIGATIONS AND METHODS USED IN AUSTRALIA, WHERE SUCH REGISTRATION IS A PREREQUISITE FOR A PREPAID SERVICE TO BE ACTIVATED, IS MADE AVAILABLE TO THE COMMITTEE.

WHAT IS SIGNIFICANT, IS THAT IT IS STATED IN THE DOCUMENT THAT:
"YOU MAY PROVIDE IT (CERTAIN INFORMATION) WHEN YOU BUY THE PRE-PAID MOBILE SERVICE OR LATER, BUT IT MUST BE PROVIDED BEFORE YOUR PRE-PAID SERVICE CAN BE ACTIVATED."

CHAIRPERSON, WHAT IS CLEAR FROM THIS, IS THAT THERE ARE EFFECTIVE REGISTRATION PROCEDURES, PROVIDED FOR TECHNICALLY, FOR SUCH REGISTRATION AFTER THE SALE, BUT BEFORE ACTIVATION, THEREFORE ALLOWING FOR THE SAME INFORMAL MARKETING METHODS AS BEING EMPLOYED AT PRESENT BY THE CELLULAR INDUSTRY IN RESPECT OF PRE-PAID SERVICES. CHAIRPERSON, DESPITE STATEMENTS MADE TO THE COMMITTEE, THAT SOUTH AFRICA IS A THIRD WORLD COUNTRY AND THAT IT HAS UNIQUE CIRCUMSTANCES, IT IS A FACT THAT THE COMMUNICATIONS INDUSTRY IS AS MODERN AND ADVANCED IN TECHNOLOGY AS SOME OF THE BEST IN THE WORLD, NOT ONLY IN TERMS OF CELLULAR COMMUNICATIONS.

MATTERS NOT ADDRESSED IN THE BILL
MUTUAL LEGAL ASSISTANCE
AN ASPECT WHICH MIGHT HAVE BEEN OVERLOOKED IN THE DRAFTING OF THE BILL, IS TO PROVIDE FOR THE INTERCEPTION AND MONITORING OF COMMUNICATIONS IN THE EXECUTION OF REQUESTS FOR MUTUAL LEGAL ASSISTANCE. IN ORGANIZED CRIME INVESTIGATIONS, SUCH REQUESTS HAVE INDEED BEEN RECEIVED. IT COULD THUS FAR ONLY BEEN ENTERTAINED WHEN AN OFFENCE IN TERMS OF SOUTH AFRICAN LAW IS OR HAVE BEEN COMMITTED. IF SOUTH AFRICA WOULD REQUIRE OTHER COUNTRIES TO ASSIST WITH SUCH INVESTIGATIONS ABROAD, FOR EXAMPLE IN INVESTIGATING MONEY-LAUNDERING, SOUTH AFRICA WOULD NEED TO BE IN THE POSITION TO RECIPROCATE. IT IS RECOMMENDED THAT, IN LINE WITH THE BRITISH LEGISLATION, THE JUDGE SHOULD BE AUTHORIZED TO ISSUE DIRECTIONS IN RESPECT OF:
"THE MAKING, IN ACCORDANCE WITH AN INTERNATIONAL MUTUAL ASSISTANCE OR OTHER COOPERATION AGREEMENT, OF A REQUEST FOR THE PROVISION OF SUCH ASSISTANCE IN CONNECTION WITH, OR IN THE FORM OF, AN INTERCEPTION OR MONITORING OF COMMUNICATIONS AS MAY BE SO DESCRIBED;THE PROVISION, IN ACCORDANCE WITH AN INTERNATIONAL MUTUAL ASSISTANCE OR OTHER COOPERATION AGREEMENT, TO THE COMPETENT AUTHORITIES OF A COUNTRY OR TERRITORY OUTSIDE THE [UNITED KINGDOM] REPUBLIC OF SOUTH AFRICA OF ANY SUCH ASSISTANCE IN CONNECTION WITH, OR IN THE FORM OF, AN INTERCEPTION OR MONITORING OF COMMUNICATIONS AS MAY BE SO DESCRIBED"
IN THE UNITED NATIONS CONVENTION ON TRANSNATIONAL ORGANIZED CRIME, PROVISION IS MADE FOR MUTUAL LEGAL ASSISTANCE IN ORGANIZED CRIME INVESTIGATIONS, INCLUDING SURVEILLANCE AND ELECTRONIC SURVEILLANCE. SOUTH AFRICA HAS SIGNED THE CONVENTION AND WILL HAVE TO IMPLEMENT IT IN THE NEAR FUTURE. THE ABOVE INSERTION IN THE BILL WILL ENABLE THE REPUBLIC TO GIVE EFFECT TO THE SAID CONVENTION.

DEFINING "INTERCEPTION"
DIFFERENT TERMINOLOGY IS USED IN THE RESPECTIVE COUNTRIES, SUCH AS "INTERCEPTION", "MONITORING", "WIRETAPPING", "AFTAPPING", "OBERWACHUNG", ETC. WITHIN THE SOUTH AFRICAN CONTEXT, THE CONCEPT OF INTERCEPTION HAS BEEN USED IN RESPECT OF THE PHYSICAL INTERCEPTION OF A LETTER, TELEGRAM, ETC, IN OTHER WORDS IN RESPECT OF POSTAL ARTICLES, WHICH ARE TAKEN IN PHYSICAL POSSESSION, AS HAS BEEN THE INTERPRETATION IN CASES LIKE PROTEA V WAINER. "MONITOR" IS DEFINED IN THE BILL AS TO "INCLUDE THE RECORDING OF A COMMUNICATION BY MEANS OF A MONITORING DEVICE". "MONITORING DEVICE" IS DEFINED AS "ANY INSTRUMENT OR DEVICE OR EQUIPMENT WHICH IS BEING USED OR CAN BE USED, WHETHER BY ITSELF OR IN COMBINATION WITH ANY OTHER INSTRUMENT, DEVICE OR EQUIPMENT , TO LISTEN TO OR RECORD ANY COMMUNICATION."
IT COULD BE CONSIDERED TO DEFINE "INTERCEPT" WITH REFERENCE TO POSTAL (PHYSICAL) COMMUNICATIONS, AND TO "BLOCK" OR PREVENT ELECTRONIC COMMUNICATIONS FROM REACHING ITS DESTINATION, AND TO REDEFINE "MONITORING DEVICE" BY SUBSTITUTING ITS DEFINITION BY:

"ANY INSTRUMENT OR DEVICE OR EQUIPMENT WHICH IS BEING USED OR CAN BE USED , WHETHER BY ITSELF OR IN COMBINATION WITH ANY OTHER INSTRUMENT, DEVICE OR EQUIPMENT , TO LISTEN TO, RECORD, OR ARCHIVE ANY COMMUNICATION, OR TO RETRIEVE A COMMUNICATION FROM A TELECOMMUNICATIONS SYSTEM. ".

THE INTERCEPTION, AS REFERRED TO ABOVE, OF TELECOMMUNICATIONS COULD BECOME NECESSARY TO PREVENT SERIOUS CRIME, FOR EXAMPLE WHERE A STRATEGIC INSTITUTION’S NETWORK IS SWAMPED WITH COMMUNICATIONS AS AN ACT OF "CYBER TERRORISM", IN ORDER TO CRIPPLE ESSENTIAL SERVICES. THE BILL SHOULD BE CAREFULLY SCRUTINIZED IN ORDER TO ENSURE THAT THE USE OF THESE DEFINITIONS IS CONSISTENT.

MONITORING OF A CELLULAR TELEPHONE INSTEAD OF COMMUNICATIONS OF A PERSON
IN LINE WITH DISCUSSIONS IN THE COMMITTEE, THE SUGGESTION THAT IT SHOULD BE POSSIBLE TO MONITOR AN INSTRUMENT WHICH HAS BEEN STOLEN OR HAS PROBABLY BEEN USED IN A CRIME, AND THE IDENTITY OF THE PRESENT USER IS UNKNOWN, IS STRONGLY SUPPORTED.

TAMPERING WITH CELLPHONES
THE TAMPERING WITH, RE-CHIPPING AND CANNIBALIZATION OF CELLULAR PHONES SHOULD BE MADE AN OFFENCE. SUCH AN OFFENCE SHOULD BE DRAFTED IN COOPERATION WITH THE TELECOMMUNICATIONS AUTHORITY. SUCH AN OFFENCE MIGHT CONTRIBUTE TO CURBING THE STEALING OF CELL PHONES AND THE MISUSE OF TAMPERED PHONES IN CRIME.

CONTROL OVER THE MANUFACTURING, DISTRIBUTION, SALE AND POSSESSION OF MONITORING DEVICES
THE MANUFACTURING, DISTRIBUTION, SALE AND POSSESSION OF MONITORING DEVICES WHICH ARE SPECIFICALLY MANUFACTURED OR ADAPTED TO DO SURREPTITIOUS MONITORING OF COMMUNICATIONS, IS NOT REGULATED AT ALL IN SOUTH AFRICAN LAW. IT IS COMMON TO FIND ADVERTISEMENTS FOR "BUGGING" AND "DEBUGGING"IN NEWSPAPERS AND EVEN IN LAW JOURNALS.
IN THE UNITED STATES OF AMERICA, THE MANUFACTURE, DISTRIBUTION, POSSESSION AND ADVERTISING OF WIRE OR ORAL COMMUNICATION INTERCEPTING DEVICES ARE PROHIBITED. THE DEVICES IN QUESTION ARE THOSE WHICH RENDER IT PRIMARILY USEFUL FOR THE PURPOSES OF SURREPTITIOUS INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS. IN FRANCE, PROVISION IS MADE FOR PUBLISHING, IN CONSULTATION WITH THE CONSEIL D’ ETAT, LISTS OF DEVICES WHICH ARE PROHIBITED.

RECENTLY THERE WERE NEWSPAPER REPORTS REGARDING THE MARKETING OF "OFF THE AIR" CELLULAR INTERCEPTION EQUIPMENT SOLD AND DISTRIBUTED IN AND FROM SOUTH AFRICA. IN TERMS OF THE ACT, AND THE BILL WE CANNOT THINK OF ANY LAWFUL PURPOSE FOR THE APPLICATION OF THIS EQUIPMENT BY PRIVATE PERSONS. ON THE CONTRARY, IT IS PARTICULARLY USEFUL FOR CRIME INCLUDING INDUSTRIAL ESPIONAGE. IT CAN BE USED TO MONITOR POLICE, LAW ENFORCEMENT GOVERNMENT AND SECURITY INSTITUTIONS WITHOUT ANY LIMITATIONS AS THOSE WHICH THE LAW ENFORCEMENT AGENCIES HAVE TO COMPLY WITH. IT IS STRONGLY RECOMMENDED THAT THE IMPORTATION, DISTRIBUTION AND SALE OF SUCH EQUIPMENT SHOULD BE CONTROLLED, PROHIBITED OR REGULATED.
CHAIRPERSON, MUCH HAS BEEN SAID ON THE PLACING OF THE RESPONSIBILITY OF CERTAIN COSTS ON THE SERVICE PROVIDERS. TO ASSIST THE COMMITTEE, I WISH TO REITERATE THE SUGGESTION OF MR PIERRE VAN WYK AS TO THE USEFUL INFORMATION IN RESPECT OF A NUMBER OF CRUCIAL ASPECTS WHICH THE COMMITTEE HAS TO ADDRESS AND WHICH ARE DISCUSSED IN THE BARRETT COMMITTEE REPORT OF AUSTRALIA(1999). A COPY OF THE REPORT IS MADE AVAILABLE. THE COSTS STRUCTURES AND FINANCIAL OBLIGATIONS OF SERVICE PROVIDERS/LAW ENFORCEMENT IN AUSTRALIA, AND REVIEWED BY THE COMMITTEE, IS THE SAME AS IN THE BILL. OF INTEREST, FOR EXAMPLE, IS THE FOLLOWING:
P 46:
" BASED ON FIGURES PROVIDED TO THE REVIEW, THE CONCLUSION IS THAT TI(TELECOMMUNICATIONS INTERCEPTION) COSTS SHOULD NOT HAVE A NOTICEABLE EFFECT ON THE PRICES PAID BY CONSUMERS FOR TELECOMMUNICATIONS SERVICES."

NUMEROUS ASPECTS, SUCH AS THE COST FACTORS, LEGAL POSITION IN A NUMBER OF COUNTRIES, ETC ARE DISCUSSED IN THE REPORT.

CHAIRPERSON,
THANK YOU ONCE AGAIN FOR THE OPPORTUNITY TO ADDRESS THE COMMITTEE.