REPUBLIC OF SOUTH AFRICA

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) a person who is dependant on the customer; or

(b) 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 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 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

(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

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

Virgin Mobile (Unnumbered)

(a) Paragraphs (a) and (b): Only the MSISDN-number should be recorded and stored.

(b) Paragraph (c): Postal addresses need not to be stored.

A SIM-card can only be activated if an MSISDN has been allocated to a customer. The fraud system on the network of the mobile cellular operators automatically records and stores the MSISDN and IMEI of every call made.

The primary intention behind the address 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 ‘a Pay (unnumbered)

(a) Paragraph (a) and (b) -Only MSISDN-number should be captured

(b) Paragraph (c) – (provision of Business address). A large part of the population does not have business addresses.

(c) Paragraph (c) should be substituted with the following:

“ 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 SIM-card.”

South Africa has approximately 30,5 million people. Approximately 8 million people are employed in the formal sector. The rest is either unemployed or are employed in the informal sector.

There is 48 million people in South Africa and only 30 million have identity documents.

Cell Shack (06 IMB 14)

(a) Process envisaged in Clause 2(2): Registering officers may abuse their powers in remote areas.

(b) Concerns are raised that the required infrastructure to facilitate the registration process may be absent in the underdeveloped areas.

Registering officers are in a unique position, in that a significant amount of customers will visit them. From a marketing point of view this will put them in an unfair position vis-à-vis the ordinary retailer who sells airtime and cellular equipment in the distribution chain.

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 (c): 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.

*Cell C (unnumbered)

(a) Proposed section 40(2)(a): Number portability and the MSISDN-number: The effect of number portability is that a customer who is registered on one network may go to another network, taking his MSISDN-number (cellular phone number) with him, which in effect means that a customer will continue his service on the network of another mobile cellular operator with his original cellular phone number (MSISDN –number).

(b) Proposed

section 42(b): Capturing of handset information (IMEI-number): Cell C refer specifically to the Chairperson’s question regarding the storing of subscriber details in respect of a cellular phone found at the scene of a crime where only the MSISDN-number has been registered. In this regard Cell C re-iterated that the IMEI-number of the handset is captured on an ongoing basis with reference to the MSISDN-number. If a handset is found, the IMEI-number can be used to identify all the MSISDN-numbers that have been used with the handset. The database of the mobile cellular operator can at anytime furnish the MSISDN or IMEI. Where a SIM-card has never been placed in a cellular phone, such handset has never been on the telecommunication system of a cellular operator and it will not have any responsibility in this regard.

(c) Proposed section 40(2)(c): Capturing of full names: The rationale behind the capturing of full names is the fact that it may eliminate errors during the registration process. In this regard it is pointed out that errors may be corrected through the use of data validation algorithms used by the Department of Home Affairs for the purposes of verification. The cellular operators use these algorithms as part of their credit vetting procedures. The procedure work on the following basis:

An ID number consist out of various identifying numbers –

* date of birth

* sex of person; and * controlling numbers.

The system have the effect that if a mistake is made through the input of an incorrect digit, the algorithm will reject it as there will be no correlation between the two numbers in the ID number.

(d) Proposed section 40(2)(c): Addresses that need to be captured: All customers do not have formal housing or addresses.

(e) Cell C indicated that if the current provisions in the Bill regarding the fields of information that must be captured are retained it is anticipated that two months of additional development time would be required and an additional month for testing of the equipment.

In this regard it is proposed that the mobile cellular operator to whose network the customer was originally connected must furnish the information of the customer to the new network. Since the MSISDN is not changing, the customer should not re-register.

A mobile telecommunication service is activated by a SIM-card and given through the SIM-card and accordingly only the MSISDN of the SIM-card need to be stored. Once the MSISDN is captured on the telecommunication system of a mobile cellular operator the IMEI-number will automatically be captured. It is further contended that it would in some instances be impossible to store the IMEI-number on sale of a cellular phone due to the fact that some handsets are sold as second hand goods or are imported as “grey” products.

Based on the use of algorithms to confirm the ID number and the limitations of the registration system of Cell C, it is proposed that only the first name, initials and surname of a person be captured.

There are less than 1.7 million South Africans with postal addresses. Many people will not have all the addresses specified in the Bill. It is therefore proposed that only one address be kept. It is proposed that a residential address be kept in respect of a natural person and a business address in respect of a juristic person.

*MTN and Vodacom (unnumbered)

(a) Capturing of IMEI-number: MTN and Vodacom submit that there is no real benefit for law enforcement to require a separate IMEI registration process which will in any case be circumvented through the unlawful changing of the IMEI number. According to them it is not necessary to also provide for a specific process to make provision for the registration of the IMEI number.

(b) Paragraph (c): Detail of customer information to be captured: Regarding the use of algorithms their representation are the same as that of Cell C. In addition the following: The Wireless Internet Gateway (WIG) applications use for this electronic registration procedure has inherent limitations, in some instances it is limited to 160 characters (currently the capacity of one SMS).

(c) It is proposed that the following information be captured, based on registration requirements applicable in the Netherlands.

- cell phone

number;

- first name;

- surname;

- address;

- postal code;

- services

(pre-paid or

pospaid);

- service provider;

- registration date;

- registration point.

In addition to the above information the mobile cellular operators will also store the IMEI and the identity number in their systems. This information is used with regard to their post paid customers.

(c) Paragraph (c): In respect of the capturing of the name it is proposed that the first name, initials and surname be captured.

(d) Paragraph (c) Adress particulars: Only one address needs to be recorded and stored. In respect of a natural person only a residential address need to be stored and in respect of a business only the business address.

A customer of a mobile telecommunication service provider is identified by a unique identification number in the form of the MSISDN. This number is the crucial identifier and enables the customer to make and receive calls. A SIM card is the security token that connect the handset to the network. A handset cannot be used (not even to make an emergency call) without an active SIM card (which only occurs if a MSISDN has been allocated for use by a customer) that enables access to a mobile cellular network.

The IMEI information of the handset is recorded and stored on an ongoing basis with reference to the MSISDN used in the handset. The MSISDN of each and every call that is made on its network together with the IMEI of the handset that is used to make the particular call is recorded and stored. This functionality is inherent in the GSM technology and has been used by the operators in cooperation with the LEAs with great success. This information is available the instant that an active SIM card is inserted in the handset and the handset is switched on. This enables the mobile operators to determine at any time which MSISDNs have been used with a particular IMEI or which IMEIs have been used with a particular MSISDN. Should a handset be found at the scene of a crime, the operators can link it to all the MSISDNs (and associated subscriber identities) used in that phone since the date of first connection of the handset to a network.

A system has to be developed if information exceeding 160 characters needs to be sent. This can take a further 2 months and 1 month testing.

This is the current manner how particulars of a person are indicated in an ID document (see in this regard driving licences which use initials only)

To motivate this it is pointed out that not all customers comply with the address requirements provided for in the Bill.

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.
*Pick’nPay (unnumbered)*	*(a) Paragraph (b): All people will not be able to provide proof of residential addresses or postal addresses.* *(b) Clause 2(3): The amount of information to be captured and the level of verification required is not practical.* *(c) The proposed section 40(2)(c) of the Bill should be amended so as to provide:* “ 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 SIM-card.” *(d) Proposed section 40(3)(b): The phrase “to the satisfaction of the telecommunication service provider”, is problematic.*	*South Africa only has 3,4 million street addresses and 3 million post box addresses.* *If too much detail is required to be captured it may lead to human error which may compromise the integrity of the data that is to be kept.* *The Act does not currently contain any provision regarding the verification of information.* *Examples should be given of what must be regarded as satisfactory proof.*
*Virgin Mobile (unnumbered)*	*(a) Paragraph(a): The provision which requires verification of personal particulars against an ID document imposes a huge financial and administrative burden* *(b) Paragraph (a): The verification process contained in the Bill is yet another duplication of other laws that have similar provisions.* *(c) Paragraph (a): Customer details should only be recorded and stored and not also verified.* *(d) Paragraph (b): Requiring documentary proof of the address of a customer living in non-formal accommodation such as rural areas is problematic.* *(e) International best practices move away from paper-based transactions to electronic transactions.*	*Other less invasive means can be considered to achieve the same goals.* *Duplication of verification laws unnecessarily increases the compliance thereof by South African Businesses and the process of simplifying lawmaking.* *True fraudsters will in any event give false information which will defeat the purpose of this provision.* *In this regard the Bill is rather a step backward insofar as it concerns e-comerce.*
*Smartcall (unnumbered)*	*Paragraph (a):The requirement of ID documents is problematic.*	*Persons who do not possess ID documents cannot obtain access to mobile cellular services which is usually the poor and uneducated.*
*Cell C (Unnumbered)	*(a) The proposed section 40(3)(a) of the Act: ID document verification requirement. At least 1.3 million South African do not have ID documents.* *(b) (Paragraph b: Verification requisite) The existing section 40 of the Act does not require address verification.* *(c) The phrase “to the satisfaction of the telecommunication service provider” should be clarified.* *(d) It is further proposed that the phrase “submitted” in paragraph (b)be substituted with the following phrase “provided” or “shown”*	*It is suggested that paragraph (b) be deleted.* *The FICA requirements can be used together with other examples.* *Submission of documentary proof is in contradiction with the proposed paperless system.*
* Vodacom and MTN (unnumbered)	(a) The ID document verification: They propose that it must be expanded to other forms of identification. (b) Verification of address: The Act does not currently make provision for the verification of address details.	*Driving licence is proposed.* *It is proposed that section 40(3)(b) be deleted.*

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.”.

Name of person or body	Comment	Motivation/remarks
*Virgin Mobile (unnumbered)*	*Welcomes the fact that information be stored in a secured storage facility. However, o*ther 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.	*Section 40(4) can be deleted.*

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
*Pick’nPay* *(unnumbered)*	*The reference to “cellular phone or” should be deleted.*	*The IMEI-number will always be available in the records of the mobile cellular operator.*
*Virgin Mobile (unnumbered)*	(a) The obligation 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 “customer” in the principle Act should be 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;”.	They interpret the definition to mean that resellers are included.
*Cell C (unnumbered)	*Proposed section 40(5): Reference to “cellular phone”: It is not necessary to capture the IMEI-number.*	Registered SIM cards are associated with an MSISDN number, and as such are rarely transferred. In the event that a registered SIM is transferred, it is contended that both the “transferor” and the “transferee” must notify the relevant mobile operator of a transfer of ownership of a SIM card. The view is expressed that existing owner should be de-registered, which in effect means the soft-locking of the customer, while the recipient will then be registered in accordance with the standard registration requirements set out in section 40(2).
* Vodacom and MTN (unnumbered)	*Proposed section 40(5):Transfer of SIM-cards: According to them* it is not necessary to record the transfer of a handsets. The matter to hand is the transfer of active SIMs. SIM cards are associated with an MSISDN, and as such are rarely transferred.	In the event that a SIM is transferred, the mobile operators support the proposition put forward in the course of the hearings that both the “transferor” and the “transferee” present themselves at the relevant mobile operator’s registration point for a transfer of ownership of a SIM card. The recipient will then be registered in accordance with the standard registration requirements set out in section 40(2).

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.”.

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

"(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.";

Name of person or body	Comment	Motivation/Remarks
Virgin Mobile (unnumbered)	*A jail sentence of 12 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—

(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 30 June 2006 but coverage of the registration points and officers will not be complete. Continue to roll out more points and officers.
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.
*Pick’nPay (unnumbered)*	*A period of at least 36 months must be allowed for registration*	The impact of the discontinuation of service to customers after 12 months needs to be considered. The discontinuation of service will have the following effect: New SIM-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 IMB 14)*	*The 12 months registration period should be extended to 36 months*	It is estimated that approximately 2.8 million customers must 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 (unnumbered)*	(a)Paragraph (c): Propose that the phrase “de-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.*
* Cell C (unnumbered)	*Time period to register existing subscribers:* Cell C is of the view that an 18 month time period would be suitable, from an operational perspective. This estimation takes into account Cell C’s proposed rollout of Registration Points and Registration Officers, and conversion to use of approximately 1500 of their existing exclusive distribution channels.	Cell C confirm that they will try to ensure that existing subscribers register ahead of the deadline for subscriber registration. It is however, pointed out that a one-year timeframe to register all existing subscribers, the majority of whom are pre-paid customers many of whom are not resident in urban areas, is not sufficient given the operational constraints in such areas.
* Vodacom and MTN(unnumbered)	(a) On page 7 of their submission an implementation plan is included. This will not be dealt with here in detail. Of significance here is that the mobile cellular operators have already started to comply with some aspects of the registration process whilst the development and implementation of other parts of the process might be dependant on the finalisation of the Bill. It must also be kept in mind that a certain period may be needed to implement the process on a national basis. *(b) Time required for re-configuration of system: If the following information are required to be recorded and stored, namely -* ID number; MSISDN-number; first name; surnme; and one address number, no additional development would need to take place and operators will be able to register customers as soon as the testing and training processes are completed. However if the current provisions of the Bill (full names, three addresses, IMEI), is maintained, it is anticipated that two months of development time would be required and an additional month for testing the solution. Furthermore, the “WIG” application was specifically developed for the informal distribution channel and may no longer be a solution if too many fields of information are required to be stored. In other words, the registration solutions will be limited to those technologies that are only suitable for deployment in the formal registration points. The consequence being that the customers in the rural and informal areas may have no choice but to have their registration effected in the formal channels that may be located a considerable distance from the point at which they purchased the SIM card. This will undermine the aim of having a wide as possible application both in terms of registration points and geography. (c) Alternative proposals are made how to deal with the registration of existing customers in terms of section 62(6) of the Act. The following processes are proposed as alternatives: (i) The first process relates to a monthly target that is set to register a certain amount of customers. If the objective is not met the amount of customers to be registered for the following time period will be increased. (ii) The second process is to mandate a registration period of 24 months for all existing subscribers subject to a 6 monthly review period without a minimum target or number of subscribers to be registered per month. *(d) Due to the fact that this* will be the first attempt in South Africa to registering such a large customer base it is requested that the progress be monitored on a continuous basis and that provision should be made for the revision of the registration period and possible amendment through sub-ordinate legislation where such extension is in the public interest for the completion of the registration of existing subscribers due to circumstances outside of the control of the operators.	Both these alternative proposals will ensure that the database of registered subscribers grows at a constant rate. The LEAs’ will also be requested to advise on hotspot areas or priority numbers that they believe should be targeted for subscriber registration. Each operator will determine how best to target their own subscriber base to ensure early registration so as to meet the registration targets. This proposal provides certainty to the LEAs that the total subscriber base will be registered at a certain identified date.

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 (unnumbered)

The date of commencement of the Bill needs to be made public as soon as possible.

This is to ensure sufficient time for compliance. It is only possible to comply with the Bill once the provisions are clear.

7. General comments

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.
*Pick’nPay (unnumbered)*	*The unintended consequences of the Bill are the counterproductivity to the development of the economy.*	Criteria for subscriber registration proposed by the Bill are so onerous that it will exclude existing and potential subscribers. It will impact most severely on customers in rural areas, the informal sector of the economy and the unemployed.
Smartcall (unnumbered)	(a) Opposes the Bill (b) Suggests an alternative data gathering technique based on electronic self registration	The Bill will impede the economical growth. Furthermore, it is opposed to the policy of the Department of Communications who wants to free up the telecommunication sector by removing beaurocracy and lowering costs. Foreign customers will be unable to roam on the network of a cellular operator unless it is registered in accordance with the Act. The customer’s ID number will be the key to unlock the MSISDN . The customer submits his or her details via his or her own cellular phone to the mobile cellular operator. The ID number is then to be checked against a so called reasonability table.
Cell-Shack (06 IMB 14)	The Bill may have a crippling effect on the social and economic structures of the poorest communities.
* Cell C	During the hearings, the Chairperson asked why the mobile operators made assumptions regarding the data capture requirements that would be set out in the amending legislation: Cell C indicates that they start to develop their registration system in parallel with the consultative process with the DOJ, in order to ensure timeous implementation. Cell C further indicates that during the consultation process the DOJ was informed that although the electronic solution will be more efficient than the paper-based model and would allow for a centralized database, there would be limitations in terms of information to be gathered. It was stressed during the consultation process that the limitations should, however, not effect the value or usefulness of the information provided to the LEAs. According to Cell C it was in that spirit that Cell C and the other mobile operators wrote to the DoJ in February 2006 to advise them of their optimal data capture fields in terms of the electronic solution, and requested theDOJ confirmation of these parameters. Cell C confirm that the DoJ did not and could not confirm that the reduced information would be suitable, as the legislation had not been amended. Cell C, indicates that it was confident based on its understanding of the requirements of the LEAs and DoJ and the capabilities of the Home Affairs database, that the proposed data capture fields would be satisfactory for law enforcement purposes and thus built its solution on that assumption.

8. COMMENTS RECEIVED BUT NOT INCLUDED

(a) M. M. Lombard, Randels

(b) Ackermans (unnumbered): Indicates that it endorses the inputs of the mobile cellular operators.

(c) Ellerines Furnishers (unnumbered): Indicates that it endorses the comment of EDCON and Vodacom.

(d) PEP (unnumbered): Indicates that it endorses the inputs of the mobile cellular operators.

(e) Vodafone (unnumbered): Indicates that it endorses inputs of Vodacom.

9. OTHER DOCUMENTATION RECEIVED

(a) EXTRACTS FROM THE RESEARCH REPORT FOR THE OFFICE OF THE PRIVACY COMMISSIONER OF CANADA

The extracts from the report deals with the aspect relating to the capturing of customer information in respect of pre-paid mobile cellular services in various countries.

The following aspects dealt with in the extracts may be highlighted:

Out of 24 countries, nine countries require mobile cellular operators to collect customer information for pre-paid services.
The rationale for a collection of this information is to, inter alia, improve the efficiency of law enforcement agencies and to deal with emergency situations.
Mobile cellular operators argued that registration of pre-paid customers will be of little value and an onerous undertaking and may also violate the right of privacy. The right to privacy relates to the disclosure of personal information in order to receive mobile cellular services. The law enforcement agencies on the other hand argue that customers do not have the right to anonymity regarding mobile cellular services. The law enforcement agencies recommended that photo identification as way of collecting and verifying customer information for entering in a storing system be obtained on activation of service.
The document further indicates that in countries where data collection is operational it is required from the mobile cellular operators to record and store the following particulars of a customer, usually at own cost –

name and address;
MSISDN-number; and
IMEI-number

In some instances it is also required from the mobile cellular operators to obtain copies of identification documents or photos of the customers.