OCR Document

SUMMARY OF REPRESENTATIONS ON THE REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION-RELATED INFORMATION AMENDMENT BILL

Name of person/body	Comment.	Motivation/Remarks
Virgin Mobile (unnumbered)	The Bill may be unconstitutional	The burden imposed by the Bill deprives mobile cellular operators of profits in that they have to spend significant amounts of money to comply with a statutory duty.

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:

Name of person/body

Comment

Motivation/Remarks

Virgin Mobile (unnumbered)

Insert the following definitions:

(a) "activate"; means to allow a customer to make calls other than calls to the 112 emergency call centre and customer care centre of the telecommunication service provider;".

(b) "'de-activate' means to prevent a customer from making calls other than to the 112 emergency call centre and customer care centre of the telecommunications service provider; ".

" '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:".

Name of person/body

Comment

Motivation/Remarks

Virgin Mobile (unnumbered)

Proposes the following amendment to the definition of "family member":

"'Family member' means- a person who is dependant on the customer; or a person's life partner;"

The definition of family member is too wide. In African customary law, people who share the same surname are often regarded as relatives, regardless of whether they are actually related by blood or by marriage.

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 81M-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 1MB 5)

MTN(06 1MB 8)

Vodacom(06 1MB 7)

(a) lnsert the words "the MSISDN or" after the word "unless"; and

(b) delete the words "SIM-card or" before the words "cellular phone ". Replace the word "SIM- card" which appears after the word "the" with the words "MSISDN associated with the SIM- card". Delete the words "SIM- card"

(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. 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. 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 Mobile Subscriber Integrated Service Digital Network number (MSISDN-number) of the SIM-card that is to be activated:

(b) the International Mobile Equipment Identity number (IMEI-number)

of the cellular phone that is to be used: and

ifl 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	(a) Par (a): (i) Insert the
(06 1MB 5)	words ""in terms of
	subsection (1)" after the
	word "activated".

(a)(ii)lnsert provision to	(a)(ii)ln view of Mobile
the effect that a tsp must	Number Portability
on request from another	important that if a
tsp, confirm whether the	subscriber ports from one
MSISDN of a customer	network to another and
who is moving from its	his/her MSISDN is
telecommunication	already registered, the
system to the other	old network wili have to
telecommunication	provide information
system has been	confirming that the
recorded and stored ito	subscriber is registered
section 40 or 62.	to new network. No re-
	registration required.
(b)Par (b):Delete the	(b) Difficult to implement a
words "to be" after the	separate registration
word ""is".	process for handsets.
	MSISDN number and
	IMEI number captured
	through operator's fraud
	management system
(c) Par (c):Delete the	when call is made.
words "full names" and	(c) Data capture system
replace them with "first	particularly in the informal

	and last name"; insert the	sector are not configured
	word "either" before the	to capture proposed
	word "residential"; insert	additional information.
	the word "or" after the	Can only obtain first
	word "residential"; insert	name and surname, 10
	the word "address" after	and one address. Rest
	the word "business" and	to be obtained from
	Delete the words "and	Home Affairs
	postal addresses"".
MTN	(a)Par (a)(i): Same as
(06 1MB 8)	Cell C.
	(b) Par (b): Same as Cell
	C
	(c) Par (c): Same as Cell
	C
Vodacom	(a) Par (b): Same as Cell
(06 1MB 7)	C
	(b) Par (c): Delete the	(b) People in rural areas
	words "full names" and	not likely to have identity
	replaced them with the	documents. Rest the
	words "first and last	same as Cell C.
	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.
Edcon	(a) Par (b): Not		(a) In some instance
(06 1MB 4)	necessary to record IMEI		either card or phone be
	and MSISDN		purchased. Instances
			where phone is acquired
			from another country or
			overseas traveller only
			needs 81 M-card locally
	(b) Par (c): Capture only
	2 addresses
Virgin Mobile	(a)	Paragraphs (a)	A SIM-card can only be
(Unnumbered)	and (b): Only the		activated if an MSISDN
	MSISDN-number		has been allocated to a
	should be recorded and		customer. The fraud
	stored.		system on the network
			of the mobile cellular
			operators automatically
			records and stores the
			MSISDN and IMEI of

			every call made.
	(b)	Paragraph (c):	The primary intention
	Postal addresses need		behind the address
	not to be stored.		requirements is to
			afford the law
			enforcement agencies a
			physical address where
			a person can be traced
			to. A postal address
			will not assist them in
			this regard.
Pick fa Pay	(a)	Paragraph (a)
(unnumbered)	and (b) -Only MSISDN-
	number should be
	captured
	(b)	Paragraph (c) -	South Africa has
	(provision of Business		approximately 30,5
	address). A large part		million people.
	of the population does		Approximately 8 million
	not have business		people are employed in

---

	addresses.		the formal sector. The
			rest is either
			unemployed or are
			employed in the
			informal sector.
	(c)	Paragraph (c)	There is 48 million
	should be substituted		people in South Africa
	with the following:		and only 30 million
	II the full names, Identity		have identity
	number or other acceptable		documents.
	form of Identity, and either
	residential or business or
	postal address of the person
	who requests that a SIM-card
	be activated or a cellular phone
	be allowed with a SIM-card. ..
Cell Shack (06 1MB 14)	(a)	Process	Registering officers are
	envisaged in Clause		in a unique position, in
	2(2): Registering		that a significant
	officers may abuse		amount of customers
	their powers in remote		will visit them. From a
	areas.		marketing point of view
			this will put them in an
			unfair position vis-a-vis

			the ordinary retailer
			who sells airtime and
			cellular equipment in
			the distribution chain.
	(b)	Concerns are
	raised that the required
	infrastructure to
	facilitate the
	registration process
	may be absent in the
	underdeveloped areas.
SAPS (unnumbered)	(a)	Paragraph (a):
	The MSISDN should be
	captured instead of the
	details of the SIM-card.
	(b)	Paragraph (b): It
	is necessary to capture
	the IMEI-number of the
	handset.
	(c)	Paragraph ():
	The full names, ID
	number must be

captured. In the case of

foreigners the following

information needs to be

captured

* country of origin;

* passport number;

* date of birth; and

* a relevant address.

3.3 Clause 2(3)

"For the curooses of subsection (2)(c). a telecommunication service crovider

must

{Bl. verify the full names and identitv number of a cerson with reference

to his or her identification document: and

1Ql require a cerson to submit documentation in which his or her

addresses are identified to the satisfaction of the

telecommunication service crovider. ".

Name of person or body	Comment	Motivation/Remarks
Cell C	Delete paragraph (b)	Not current requirement
(06 1MB 5)		in Act. Introduce paper-
		based element in
		electronic solution.
		Unavailability of proof of

			addresses of customers
			in informal settlements.
			Customers move around.
Vodacom	Delete paragraph (b)		Same as Cell C
(06 1MB 7)
Edcon	(a) Par (a): (i)Require		(a) Retailers and
(06 1MB 4)	clear guidelines for		operators can be held
	purposes of verifying		liable for fraudulent 10
	information.		accepted in good faith.
	(ii)What constitutes valid
	ID?
	(b) Par (b): Require		(b) Subscribers in rural
	guidelines ito what will be		areas, informal
	considered as valid		settlements and
	address.		international travellers
			have limited means to
			prove physical address.
.
Pick'nPay	(a)	Paragraph (b): All	South Africa only has
(unnumbered)	people will not be able		3,4 million street
	to provide proof of		addresses and 3 million

residential addresses

or postal addresses.

post box addresses.

(b) Clause 2(3): The Ilf too much detail is

amount of information I required to be captured

to be captured and the I it may lead to human

level of verification I error which may

required is not I compromise the

practical. I integrity of the data that

(c)

The proposed

section 40(2)(c) of the

is to be kept.

The Act does not

currently contain any

Bill should be amended I provision regarding the

so as to provide:

II the full names, identity

number or other acceptable

form of identity, and either

residential or business or

postal address of the person

who requests that a SIM-card

be activated or a cellular phone

be allowed with a 81M-card. "

verification of

information.

(d) Proposed section I Examples should be

	40(3)(b): The phrase lito		given of what must be
	the satisfaction of the		regarded as
	telecommunication		satisfactory proof.
	service provider', is
	problematic.
Virgin Mobile	(a)	Paragraph(a):	Other less invasive
(unnumbered	The provision which		means can be
	requires verification of		considered to achieve
	personal particulars		the same goals.
	against an ID document
	imposes a huge
	financial and
	administrative burden
	(b)	Paragraph (a):	Duplication of
	The verification		verification laws
	process contained in		unnecessarily
	the Bill is yet another		increases the
	duplication of other		compliance thereof by
	laws that have similar		South African
	provisions.		Businesses and the
			process of simplifying
			lawmaking.

	(c)	Paragraph (a):	True fraudsters will in
	Customer details		any event give false
	should only be		information which will
	recorded and stored		defeat the purpose of
	and not also verified.		this provision.
	(d)	Paragraph (b):	In" this regard the Bill is
	Requiring documentary		rather a step backward
	proof of the address of		insofar as it concerns
	a customer living in		e-comerce.
	non-formal
	accommodation such
	as rural areas is
	problematic.
	(e)	International best
	practices move away
	from paper-based
	transactions to
	electronic transactions.
Smartcall	Paragraph (a):The		Persons who do not
(unnumbered)	requirement of ID		possess ID documents

documents is	cannot obtain access to
problematic	mobile cellular services
	which is usually the
	poor and uneducated

3.4 Clause 2(4)

"A telecommunication service provider must ensure that

@.l the process contemplated in subsection (2);

{Ql. the information recorded and stored in terms of that subsection:

and

ffl the facility in or on which the information is recorded and stored.

are secure and only accessible to persons specifically desianated by that

telecommunication service provider.",

Name of person or body	Comment	Motivation/remarks
Virgin Mobile	Welcomes the fact that	Section 40(4) can be
(unnumbered)	information be stored	deleted.
	in a secured storage
	facility. However, other
	legislative measures
	have sufficient
	measures to protect the
	necessary information.
	Furthermore the

protection of customer

information is also an

aspect that is dealt with

in the licences of the

mobile cellular

operators.

3.5 Clause 2!ID,

"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

@l obtain from such person a document statina his or her

ill full names:

illl identity number: and

om residential. business and postal addresses:

{f;ll by referrina to such person's identification document. verify the

person's photo. full names and identity number:

{Ql. retain the information referred to in paraaraph (8): and

{Ql notify the telecommunication service provider of

ill his or her own name and identity number:

illl the date on which the cellular phone or SIM-card was

handed to the other person: and

(iii) the part!9J!ars set out in paraqraph (a).".

Name of person or body	Comment	Motivation/remarks
Cell C	(i)ln header, delete the	(i)Operators will always
(06 1MB 5)	words "cellular phone or"	have a customers'
	before "81M-card"; insert	handset number if
	the words "associated	customer is registered.
	with a registered	(What if customer is not
	M818DN" after the word	registered)
	"81M-card".
	(ii)Obligation to be put on	(ii) Introduce hybrid
	new owner of the 81M-	paper-based/electronic
	card to register details ito	process and fraudulent
	standard procedure. .	transfers are possible.
MTN	(i)ln header, delete the	Motivation the same as
(06 1MB 8)	words "cellular phone or"	Cell C.
	before "81M-card".
	(ii)Concerned about
	obligation on person
	transferring ownership
Vodacom	(i)ln header, insert the	Motivation same as Cell
(06 1MB 7)	words "who has	C
	registered in terms of

-- --

	subsection 1 "after the
	word "customer";
	(ii)ln header, delete the
	words" cellular phone or"
	before the word "SIM-
	card".
Pick'nPay	The reference to		The IMEI-number will
(unnumbered)	"cellular phone or"		always be available in
	should be deleted.		the records of the
			mobile cellular
			operator.
Virgin Mobile	(a)	The obligation
(unnumbered)	should be on the
	receiver of the cellular
	phone to store the
	required information
	and not the person who
	disposes of the cellular
	phone. The person who
	receives the cellular
	phone should only
	have to inform the
	relevant

-- -

telecommunication

service provider of the

MSISDN-number, their

names and residential

or business addresses.

(b) The definition of I They interpret the

llcustomer" in the I definition to mean that

principle Act should be I resellers are included.

deleted to exclude the

resellers of cellular

phones. It is proposed

that the definition in the

principle Act be

substituted with the

following definition:

"'customer' means any

person, other than a

reseller of a

telecommunications service,

to whom a

telecommunications service

provider provides

telecommunication services

pursuant to entering into an

agreement or otherwise on

receipt of payment;".

3.6 Clause 2{§}

"A telecommunication service

rovided in terms of subsection (S)(d). uodate the information recorded and

stored in terms of subsection (2).

3.7 Clause 2(7}

"Notwithstandina subsection (1) of section 39. subsections (3)(8

of that section aoolv with the necessary chances in resoect of a

telecommunication service orovider who provides a mobile cellular

telecommunication service.".

Name of person or body	Comment	Motivation/remarks
Virgin Mobile	Provision should be	Section 39 of the Act is
(unnumbered)	made for a disclosure	in conflict with the
	direction. Various	other provisions of the
	amendments to the Act	Act regarding the
	are proposed in this	protection of
	regard.	information .It is
		suggested that
		customary information

be obtained only as a

result of a warrant

issued by the

designated judge.

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:

n(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:

n(3A) Any telecommunication service provider who

fails to comply with section 40(1

62(6)(8), (b) or (c) is auilty of an offence and liable on conviction to

a fine not exceedina R 100 000 for each day on which such failure

to comply continues.".

4.3 Clause 3(b):

Insertion of section 51 (3ID

"Anv customer who fails to comolv with section 40(5

liable on conviction to a fine or to imorisonment for a oeriod not exceedina 12

months.";

Name of person or body	Comment	Motivation/Remarks
Virgin Mobile	A jail sentence of 12
(unnumbered)	months is too harsh. It
	should be substituted
	with a fine.

4.4 Clause 3(c)

Section 51 of the principal Act is hereby amended

(e) 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 orovider of the obligation to comolv with section

40(1), (2), (3), (4) or (6) or section 62(6)(8), (b) or (e): 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:

"@ lBl 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 alreadv been

recorded and stored in terms of section 40.

{Ql Section 40(2). (3) and (4) applies with the

necessary chanaes in respect of a telecommunication service provider

referred to in paraaraph (a).

l.fl A telecommunication service provider who

provides a mobile cellular service shall not allow service continuation,

other than allowina network access to emeraencv calls. customer care

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

(Ql Notwithstandina subsection (1) of section 39. subsections

respect of a telecommunication service provider who provides a mobile

cellular telecommunication service.".

Name of person or body	Comment	Motivation/Remarks
Cell C	Insert the words "a	Majority of subscribers
(06 1MB 5)	defined period of time as	are pre-paid customers
	agreed with the Portfolio	many of whom are not
	Committee" after the	resident in urban areas.
	word "within"; delete the	The registration solution

	words "12 months" before	will be ready by 30 June
	the word "from" ; delete	2006 but coverage of the
	the words "and cellular	registration points and
	phones" after the word	officers will not be
	"SIM-cards".	complete. Continue to roll
		out more points and
		officers.
MTN	Period of 12 months to	Period too short. 9 920
(06 1MB 8)	be extended	customers to be
		registered per hour.
Vodacom	Period of 12 months	8 900 customers to be
(06 1MB 7)	referred to in subsection	registered per hour plus
	(6)(a) and (c) to be	the new subscribers.
	extended to 36 months.
Edcon	Period of 12 months too	20 to 30 million existing
(06 1MB 4)	short. Require three year	subscribers to register in
	period.	one year. Not sufficient
		infrastructure.
Law Enforcement	Supports 12 month	Use of cell phones in
Agencies	period.	commission of serious
(06 1MB 6)		crimes has increased.
Pick'nPay	A period of at least 36	The impact of the
(unnumbered)	months must be	discontinuation of

- -- --

	allowed for registration	service to customers
		after 12 months needs
		to be considered. The
		discontinuation of
		service will have the
		following effect:
		*New 81M-card needs to
		be purchased.
		*Pre-paid funds
		allocated to a customer
		will lapse.
		*Customer may be
		unable to register again
		due to fact that he or
		she is not in
		possession of
		necessary
		documentation.
Cell-Shack (06 1MB 14)	The 12 months	It is estimated that
	registration period	approximately 2.8
	should be extended to	mil/ion customers must
	36 months	be registered monthly.
		The result of non-

		registration is
		discontinuation of
		services of pre-paid
		customers. This may
		result in damage to the
		economy as small
		businesses will be
		without
		communications and
		may thus be forced to
		close
Virgin Mobile	(a) Paragraph (c):
(unnumbered)	Propose that the
	phrase Ilde-activate" be
	used in place of words
	"shall not allow service
	continuation", which
	must also be read in
	conjunction with their
	proposed definition of
	"de-activate"
	(b) Paragraph (c):
	Support the

representations of the

mobile cellular

operators. Proposes a

period of 30 months.

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 30 June 2006 or on such earlier date as the President

may determine by Proclamation in the Gazette.",

Name of person or body	Comment	Motivation/Remarks
Virgin Mobile	The date of	This is to ensure
(unnumbered)	commencement of the	sufficient time for
	Bill needs to be made	compliance. It is only
	public as soon as	possible to comply with
	possible.	the Bill once the
		provisions are clear.

7. General comments

Name of person or body	Comment	Motivation/Remarks
Cell C	Inclusion of a provision	Amendment to ensure
(06 1MB 5)	indicating that where the	that an element of

	telecommunication	competition is not
	service providers use	introduced as this relates
	third parties in fulfilling	to compliance with legal
	their requirements ito	requirements. There are
	sections 40 and 62(6) the	precedents for imposition
	tsp shall cooperate to	of requirement for
	determine the level of	operators to agree on a
	remuneration of such	uniform tariff in the case
	third parties.	on non-competitive
		actions but compliance
		with legal requirements.
Edcon	Require clarity on
(06 1MB 4)	process if fraudulent
	activity is identified.
Pick'nPay	The unintended	Criteria for subscriber
(unnumbered)	consequences of the	registration proposed
	Bill are the	by the Bill are so
	counterproductivity to	onerous that it will
	the development of the	exclude existing and
	economy.	potential subscribers. It
		will impact most
		severely on customers
		in rural areas, the

			informal sector of the
			economy and the
			unemployed.
Smartcall	(a)	Opposes the Bill	The Bill will impede the
(unnumbered)			economical growth.
			Furthermore, it is
			opposed to the policy
			of the Department of
			Communications who
			wants to free up the
			telecommunication
			sector by removing
			beaurocracyand
			lowering costs. Foreign
	(b)	Suggests an	customers will be
	alternative data		unable to roam on the
	gathering technique		network of a cellular
	based on electronic self		operator unless it is
	registration		registered in
			accordance with the
			Act.
			The customer's ID
			number will be the key