VODACOM

31 July 2006

Re: The Regulation of Interception and Provision of Communications-related Information Act Amendment Bill [B9-2006]

Vodacom wishes to thank the Portfolio Committee on Justice and Constitutional Development ("the Committee") for the opportunity to supplement previous submissions. We trust that this additional Input will assist the Committee in its deliberations and efforts to finalise the RICA Amendment Bill as soon as possible.

The mobile operators agree that RICA is a significant tool that will assist the, Law Enforcement Agencies (LEA's) in combating crime. We note that other legislative interventions exist which would also facilitate the LEA's efforts to combat various forms of criminal activities, such as the Second Hand Goods Act. Further, industry initiatives such as the MOU on the Blacklisting of Handsets that have been reported as lost or stolen have also been used to assist the LEA's. Vodacom respectfully submits that RICA cannot be seen as a universal panacea for varied crime scenarios that confront the LEA's from time to time. The efficacy of RICA must therefore be measured in the context of the broader framework of crime control legislation and industry specific initiatives in this regard.

This submission seeks to address, within this broader framework, comments made in the course of deliberations by members of the Committee on the RICA customer registration process.

1. Capturing of Handset Information (IMEI)

The licences issued to Vodacom entitle them to provide telecommunications services, being the conveyance of signs, signals and other messages between customers over a telecommunications network. The provision of handsets does not fall within the scope of such licensed service. Licensed telecommunications services are provided by the Mobile Operators to the end user solely through the SIM card. The handset (and all other devices using GSM modules such as data cards and tracking devices) serves as a facilitative instrument in the hands of the end user.

RICA regulates those aspects of communications that the LEAs require to combat crime in a technologically advanced society. The subscriber registration requirements have been included in RICA in order to facilitate a more effective and efficient process for the LEAs to intercept or obtain communications-related Information as part of their investigative processes.

As stated in previous submissions, a mobile handset without a SIM card is nothing more than a paper weight. The mere possession of a handset is not an offence nor is a licence required to possess a handset. Indeed, the importation and sale of handsets is an open competitive activity in South Africa with many participants in a large and complex market. Consequently, we respectfully submit that only the use of an active 81M card in a network is relevant from a RICA perspective.

A concern was expressed in the Committee regarding the use of a legal defence that a SIM card or handset found at the scene of a crime was stolen and that there was accordingly a need to establish a definitive test of ownership for both the SIM card and handset. However, this "defence" is adequately catered for in Section 41 which requires any person to report the loss, theft or destruction of a SIM card and/or cellular phone to the police. The failure to report such an event is a criminal offence in terms of section 55 of RICA. A suspect would thus not be able to claim the theft of either the SIM card or the handset unless the theft is reported in terms of Section 41. In addition, a stolen handset will be blacklisted and the SIM blocked once its loss has been reported to the mobile operators, thus rendering them unusable.

During the deliberations in the Committee, it was acknowledged that cellular phones are sold via a number of channels which are not under the control of the mobile operators and that only a limited number of cellular phones are distributed and/or sold by the mobile operators. Nonetheless, it was proposed that access to the networks be denied to unregistered cellular phones. Two mechanisms were suggested during the deliberations for effecting this, one was to require simultaneous registration of handsets on all three networks, or requiring registration on only one network with such registration recognised by the remaining networks.

Such a proposal can only be effectively implemented by requiring that the operators register and keep records of all handsets (as well as all other devices using GSM modules) which can be used on their networks i.e. in order for the proposal to work a handset (or any other device using a GSM module) that Is not registered on any of the networks should not be allowed access. Vodacom respectfully submit that the viability of such a solution Is questionable since only a limited number of globally available cellular phones are distributed and/or sold by the mobile operators.

The possibility that such a solution will meet the objectives of the legislation is highly unlikely. The information held in such a database will not be reliable as handsets with IMEls that have been fraudulently removed and replaced would not be included in such database. As such, the objective of this requirement would not be satisfied.

Vodacom therefore reiterate their view that the current system in terms of which an IMEI is captured by operators when the MSISDN of an active SIM card is captured is more than adequate for the purpose of assisting the LEAs in terms of RICA. It should be noted in this regard that in circumstances where the registration details of the IMEI were not available, the Police with the assistance of a mobile operator were able to apprehend the person who had sent death threats to a Member of Parliament. In this regard the operators wish to emphasise that every time that a handset is used with an MSISDN the mobile operators' are able to and actually do automatically capture Information relating to such usage including the following:

· the IMEI;

· the IMSI (i.e. 8im-card number);

· place of origination of the call (I.e. where the caller is located when making the call);

· the destination of the call (I.e. the number being called and its location during the call);

· the duration of the call; and

· the time of termination of the call.

For reasons outlined above, we submit that only the MSISDN should be captured as part of subscriber registration.

2. Registration of Foreign subscribers roaming on South African mobile networks ("Inbound Roamers")

At the meeting of 7 June 2006, the Committee indicated to the mobile operators that customers of foreign networks roaming on local networks (MTN, Vodacom or Cell C) should be required to register when they enter the country in order to be permitted to roam.

The mobile operators are concerned that this is both practically and technically infeasible, as roaming agreements are reciprocal commercial agreements entered into between networks, and are not entered into with the subscribers of such networks. The mobile operators can only exercise network access control which includes activation, suspension or termination over their own customers (i.e. the person to whom a service is provided). In the case of inbound roamers, the local network does not enter into agreements with each foreign subscriber; the "customer" of the mobile operator is the foreign network.

A local subscriber roaming in another country remains a South African subscriber - s/he is not required to change his/her MSISDN or to remove his/her 81M card, and continues to receive a service from his/her local operator. Similarly, a T-Mobile Germany subscriber in South Africa, roaming on a local network remains a subscriber of his/her home network. S/he is able to utilize either MTN, Vodacom or Cell C's network based on an agreement between his/her home network and the relevant local network - at no point does s/he interact with the local mobile operators, nor does s/he enter into any contract with any South African operator.

It should be noted that a foreign subscriber will not necessarily roam on a single specific local network for the duration of his/her visit. Depending on coverage or even personal preference, the subscriber may roam on any of the available networks while in South Africa or may automatically switch between networks without any operator input. As such it is by no means clear which network it is that a foreign subscriber is to be listed as registered on. Given the MSISDN we can, however, inform tlie LEA's whether a customer of another network made use of a particular network.

Furthermore, there is an exchange of billing information files between the foreign and local operators with regards to the following information on roaming subscribers, this information is already provided for in terms of the Section 30 Directives:

· MSISDN

· IMEI (handset number)

· IMSI (SIM card number)

· Foreign network's name

By virtue of roaming agreements, the contact name and numbers of an appointed person at each of the networks with which we have agreements who is in a position to assist with this and any other required information is available.

The LEA's are therefore in a position to easily determine which network a foreign subscriber roamed on whilst in South Africa (and as it cannot be assumed that a subscriber would have been on one local network for the duration of his/her visit, this enquiry will necessarily encompass all three networks). In addition, the LEAs are in a position to obtain from Interpol, or through any other international arrangements, any further information from such network that is required for policing purposes.

Requiring a foreign subscriber to separately register on each mobile operator's network prior to usage will have a severe and detrimental effect on the South African economy and would seriously undermine the potential and growth of our fledgling tourism industry .

Conclusion

We trust that this supplementary submission will be of assistance to the Committee and will contribute towards the speedy finalisation of the RICA Amendment Bill.

We would like to thank the Committee for affording us an opportunity to provide further written comments and we are available for further discussion with the Committee, Department of Justice and Constitutional Development and LEAs' on any concerns relating to the finalisation and implementation of RICA.

Yours sincerely,

Shameel Jeosub: Managing Director

Vodacom (Pty) Limited