SUMMARY OF
ARGUMENTS FORWARDED BY
BEFORE
PARLIAMENT ON
1. Long title
“To amend the Regulation of Interception of Communications and Provision
of Communication-related Information Act, 2002, so as to insert a certain
definition; to provide afresh for information to be obtained and kept in
respect of cellular phones and SIM-cards; and to provide for matters connected
therewith.”.
2. Clause 1: Amendment of section 1 of Act 70 of 2002
“Section 1
of the Regulation of Interception of Communications and Provision of
Communication-related Information Act, 2002 (hereinafter referred to as
the principal Act), is hereby amended by the insertion after the definition of
"Executive Director" of the following definition:
" 'family member' means—
(a) a person who is related
to another person biologically or by law, including customary law; or
(b) a person’s
permanent life partner;".
3. Clause 2: Substitution of section 40 of Act 70 of 2002
3.1 Clause 2(1)
“Information to be obtained and
kept in respect of cellular phone and SIM-card
40. (1) A
telecommunication service provider who provides a mobile cellular service shall
not—
(a) activate
a SIM-card; or
(b) allow
the use of any cellular phone,
on its telecommunication system
unless the particulars of the SIM-card or cellular phone are recorded and
stored in the manner provided for in subsection (2).”.
|
Name of person/body |
Comment |
Motivation/Remarks |
|
Cell C (06 IMB 5) |
(a)Insert the words “the MSISDN or” after the word
”unless”; and (b) delete the words “SIM-card or” before the words
“cellular phone”. |
(a)Customer identified by a unique identification
number (MSISDN) known as the cell phone number. Through this number SIM-card
can be identified and thus do not need to capture SIM-card number. (b) No need then for re-registration if customer
changes operators as his/her cell phone number will not change. |
|
MTN (06 IMB 8) |
Replace the word “SIM-card” which appears after the
word “the” with the words “MSISDN associated with the SIM-card”. |
Customer identified by a unique identification
number (MSISDN) known as the cell phone number. Through this number SIM-card
can be identified and thus do not need to capture SIM-card number. |
|
Vodacom (06 IMB 7) |
Delete the words “SIM-card” |
Only MSISDN number to be captured as SIM-card can
only be activated once MSISDN number has been allocated |
3.2 Clause 2(2)
“From the date of commencement of this section a
telecommunication service provider must, subject to subsection (4), at own cost
implement a process to record and store, and must record and store―
(a) the
(b) the
International
(c) the
full names, identity number and residential, business and postal addresses of
the person who requests that a SIM-card be activated or that a cellular phone
be allowed to be used with a SIM-card.
|
Name of person or body |
Comment |
Motivation/Remarks |
|
Cell C (06 IMB 5) |
(a)Par (a): (i) Insert the words “ïn terms of
subsection (1)” after the word “activated”. (a)(ii)Insert provision to the effect that a tsp
must on request from another tsp, confirm whether the MSISDN of a customer
who is moving from its telecommunication system to the other
telecommunication system has been recorded and stored ito section 40 or 62. (b)Par
(b):Delete the words “to be” after the word “ïs”. (c) Par (c):Delete the words “full names” and
replace them with “first and last name”; insert the word “either” before the
word “residential”; insert the word “or” after the word “residential”; insert
the word “address” after the word “business” and Delete the words “and postal addresses””. |
(a)(ii)In view of Mobile Number Portability
important that if a subscriber ports from one network to another and his/her
MSISDN is already registered, the old network will have to provide
information confirming that the subscriber is registered to new network. No
re-registration required. (b)Difficult to implement a separate registration
process for handsets. MSISDN number
and IMEI number captured through operator’s fraud management system when call
is made. (c) Data capture system particularly in the informal
sector are not configured to capture proposed additional information. Can only obtain first name and surname, ID
and one address. Rest to be obtained
from Home Affairs |
|
MTN (06 IMB 8) |
(a)Par (a)(i):
Same as Cell C. (b)Par (b):
Same as Cell C (c) Par (c): Same as Cell C |
|
|
Vodacom (06 IMB 7) |
(a)Par (b):
Same as Cell C (b)Par (c):
Delete the words “full names” and replaced them with the words “first
and last name”; insert the words “or
other acceptable form of identity, and where available” after the words
identity number” and the rest same as Cell C. |
(b)People in rural areas not likely to have identity
documents. Rest the same as Cell C. |
|
Edcon (06 IMB 4) |
(a) Par (b): Not necessary to record IMEI and MSISDN (b)Par (c):
Capture only 2 addresses |
(a) In some instance either card or phone be
purchased. Instances where phone is acquired from another country or overseas
traveller only needs SIM-card locally |
3.3 Clause 2(3)
“For the purposes of subsection (2)(c), a telecommunication service provider must—
(a) verify
the full names and identity number of a person with reference to his or her
identification document; and
(b) require
a person to submit documentation in which his or her addresses are identified
to the satisfaction of the telecommunication service provider. “.
|
Name of person or body |
Comment |
Motivation/Remarks |
|
Cell C (06 IMB 5) |
Delete paragraph (b) |
Not current requirement in Act. Introduce paper-based element in electronic
solution. Unavailability of proof of addresses of customers in informal
settlements. Customers move around. |
|
Vodacom (06 IMB 7) |
Delete paragraph (b) |
Same as Cell C |
|
Edcon (06 IMB 4) |
(a) Par (a): (i)Require clear guidelines for
purposes of verifying information. (ii)What constitutes valid ID? (b) Par (b): Require guidelines ito what will be
considered as valid address. |
(a) Retailers and operators can be held liable for
fraudulent ID accepted in good faith. (b) Subscribers in rural areas, informal settlements
and international travellers have limited means to prove physical address. |
3.4 Clause 2(4)
“A telecommunication service provider must ensure
that−
(a) the
process contemplated in subsection (2);
(b) the
information recorded and stored in terms of that subsection; and
(c) the
facility in or on which the information is recorded and stored,
are secure and only accessible to
persons specifically designated by that telecommunication service provider.”.
3.5 Clause 2(5)
“Any customer who from the date of commencement of
this section sells or in any other manner provides a cellular phone or SIM-card
to a person other than a family member, must―
(a) obtain from such person a
document stating his or her−
(i) full names;
(ii) identity number; and
(iii) residential, business and postal
addresses;
(b) by
referring to such person’s
identification document, verify the person’s photo, full names and identity
number;
(c) retain
the information referred to in paragraph (a);
and
(d) notify
the telecommunication service provider of—
(i) his or her own name and identity
number;
(ii) the date on which the cellular phone
or SIM-card was handed to the other person; and
(iii) the particulars set out in paragraph (a).”.
|
Name of person or body |
Comment |
Motivation/remarks |
|
Cell C (06 IMB 5) |
(i)In header, delete the words “cellular phone or”
before “SIM-card”; insert the words “associated with a registered MSISDN”
after the word “SIM-card”. (ii)Obligation to be put on new owner of the
SIM-card to register details ito standard procedure. . |
(i)Operators will always have a customers’ handset
number if customer is registered. (What if customer is not registered) (ii) Introduce hybrid paper-based/electronic process
and fraudulent transfers are possible. |
|
MTN (06 IMB 8) |
(i)In header, delete the words “cellular phone or”
before “SIM-card”. (ii)Concerned about obligation on person transferring
ownership |
Motivation the same as Cell C. |
|
Vodacom (06 IMB 7) |
(i)In header, insert the words “who has registered
in terms of subsection 1”after the word “customer”; (ii)In header, delete the words “ cellular phone or”
before the word “SIM-card”. |
Motivation same as Cell C |
3.6 Clause 2(6)
“A telecommunication service provider must, upon
receipt of the information provided in terms of subsection (5)(d), update the information recorded and
stored in terms of subsection (2).
3.7
Clause 2(7)
“Notwithstanding subsection (1) of section 39,
subsections (3)(a) and (b) and (4) of that section apply with
the necessary changes in respect of a telecommunication service provider who
provides a mobile cellular telecommunication service.”.
4. Clause 3: Amendment of section 51 of Act 70 of 2002
4.1 Clause 3(a)
“Section 51 of the principal Act is hereby amended—
(a) by
the substitution in subsection (1)(a)
for subparagraph (i) of the following subparagraph:
"(i) contravenes or fails to comply with
section 6(2), 7(4), 8(4), 29(8), [40(1),
(2) or (3),] 42(1) or 45(1);”;
4.2
Clause 3(b): Insertion of section 51(3A)
Section 51 of the principal Act is hereby amended—
(b) by the insertion after
subsection (3) of the following subsections:
"(3A) Any telecommunication service provider
who fails to comply with section 40(1), (2), (3), (4) or (6) or section 62(6)(a), (b) or (c) is guilty of an offence and liable on conviction to a fine not
exceeding R100 000 for each day on which such failure to comply continues.”.
4.3 Clause 3(b): Insertion of section 51(3B)
“Any customer who fails to comply with section 40(5)
is guilty of an offence and liable on conviction to a fine or to imprisonment
for a period not exceeding 12 months.";
4.4 Clause 3(c)
Section 51 of the principal Act is hereby amended—
(c) by the deletion in subsection (5) of the
word "or" at the end of paragraph (b)
and the insertion after that paragraph of the following paragraph:
“(bA) subsection (3A)
does not relieve any telecommunication service provider of the obligation to
comply with section 40(1), (2), (3), (4) or (6) or section 62(6)(a), (b) or (c); or".
5. Clause 4: Amendment of section 62 of Act 70 of 2002
“Section 62 of the principal Act is hereby amended by the substitution
for subsection (6) of the following subsection:
“(6) (a) A telecommunication service provider
who provides a mobile cellular telecommunication service must, within 12 months
from the date of commencement of this section, record and store the particulars
of all SIM-cards and cellular phones that are used on its telecommunication
system if such particulars have not already been recorded and stored in terms
of section 40.
(b) Section 40(2), (3) and (4) applies with the necessary
changes in respect of a telecommunication service provider referred to in
paragraph (a).
(c) A telecommunication service provider who provides a mobile
cellular service shall not allow service continuation, other than allowing
network access to emergency calls, customer care calls and calls for the
purpose of compliance with paragraph (a),
in respect of any SIM-card or
cellular phone of which the particulars are not recorded and stored at the
expiry of the 12 month period referred to in paragraph (a), unless there is full compliance with that paragraph.
(d) Notwithstanding subsection (1) of section 39, subsections
(3)(a) and (b) and (4) of that section apply with the necessary changes in
respect of a telecommunication service provider who provides a mobile cellular
telecommunication service.”.
|
Name of person or body |
Comment |
Motivation/Remarks |
|
Cell C (06 IMB 5) |
Insert the words “ä defined period of time as agreed
with the Portfolio Committee” after the word “within”; delete the words “12
months” before the word “from” ; delete the words ”and cellular phones” after
the word “SIM-cards”. |
Majority of subscribers are pre-paid customers many
of whom are not resident in urban areas. The registration solution will be
ready by |
|
MTN (06 IMB 8) |
Period of 12 months to be extended |
Period too short.
9 920 customers to be registered per hour. |
|
Vodacom (06 IMB 7) |
Period of 12 months referred to in subsection (6)(a)
and (c) to be extended to 36 months. |
8 900 customers to be registered per hour plus the
new subscribers. |
|
Edcon (06 IMB 4) |
Period of 12 months too short. Require three year period. |
20 to 30 million existing subscribers to register in
one year. Not sufficient
infrastructure. |
|
Law Enforcement Agencies (06 IMB 6) |
Supports 12 month period. |
Use of cell phones in commission of serious crimes
has increased. |
6. Clause 5: Short title and commencement
“This Act is called the Regulation of Interception of Communications and
Provision of Communication-related Information Amendment Act, 2006, and comes
into operation on
7.
General
aspects
|
Name of person or body |
Comment |
Motivation/Remarks |
|
Cell C (06 IMB 5) |
Inclusion of a provision indicating that where the
telecommunication service providers use third parties in fulfilling their
requirements ito sections 40 and 62(6) the tsp shall cooperate to determine
the level of remuneration of such third parties. |
Amendment to ensure that an element of competition
is not introduced as this relates to compliance with legal requirements.
There are precedents for imposition of requirement for operators to agree on
a uniform tariff in the case on non-competitive actions but compliance with
legal requirements. |
|
Edcon (06 IMB 4) |
Require clarity on process if fraudulent activity is
identified. |
|