SUBMISSION ON THE REGULATION OF INTERCEPTION AND PROVISION OF COMMUNICATION-RELATED INFORMATION AMENDMENT BILL [B 9B-2006]

From: C Nqakula: Minister,

To: Mr LM Mokoena: Select Committee: Security and Constitutional Affairs National Council of Provinces

Thank you for your invitation to the National Commissioner of the South African Police Service (SAPS), dated 26 September 2007, to submit written submissions on the above-mentioned Bill.

Although some of the concerns of the South African Police Service have been addressed in the Bill approved by the National Assembly, there are still a number of issues which have not been addressed. These issues mainly deal with cellular phone registration as opposed to SIM-card registration, roaming by foreign travelers to South Africa and the compulsory storage of information by electronic communication service providers to enable the SAPS to conduct thorough criminal investigations.

It should be noted that technology has drastically improved over the last four (4) years, in many instances enabling institutions such as the South African Police Service to achieve, in close co-operation with the cellular networks, technology outcomes that make certain proposed amendments superfluous. Networks have further undertaken to fully explore further technology outcomes and services to further enhance, not only their relationship with the South African Police Service, but significantly support its crime prevention and combating functions.

After due consideration and with full cognisance of the practical outcomes sought from the Bill, as well as the feasibility thereof, the South African Police Service proposes a zero based approach to the Amendment Bill, with the following requirements:

A principled position be maintained that only the Mobile Subscriber Integrated Service Digital Network-number (MSISDN-number) of the SIM-card be recorded and stored. Registration of the International Mobile Equipment Identity-number (IMEI-number) of the cellular phone is not necessary to identify users since handsets cannot be activated without a SIM-card, the latter which, in any event, has to be registered.

On face value, it appears that the Bill may withhold cellular telephony from certain categories of persons such as minors who, due to orphanage, act as the heads of households. It is not clear from the Bill whether orphaned minors who are the heads of households can apply for activation of a new cellular phone or SIM-card, for the simple reason that a minor below the age of 16 years cannot apply for an identity document. Although the definition of "identification document" in the Bill also includes identity cards or temporary identity certificates issued in terms of section 14 and 16 of the Identification Act, 1997 (Act No. 68 of 1997), the Bill does not state whether such minors will qualify for a new activation. It would appear from the new section 40(5) of the Bill that such minors can only escape the requirement of registration and verification if they receive an already activated cellular phone or SIM-card from a family member, Le. someone related to them biologically or by statutory, customary or religious law (including affinity by marriage, adoption or foster care) or, in the case of an orphan, a care-giver as defined in the Children's Act, 2005 (Act No. 38 of 2005).

If the proposal is accepted that cellular phone registration (as opposed to SIM-card registration) is not necessary to identify users, the Bill must expressly provide that full handsets profiles (so-called IMEI-mapping) must be stored by cellular networks, and be available to law enforcement agencies, for a period of ten years. Such mapping must include all registration details of all SIM-cards used in the handset, in the same matrix, including the MSISDN and the International Mobile Subscriber Identity (IMSI) numbers of the SIM-cards.

It should be legislated that all MSISDN registration information, including that of contract subscribers within the databases of service providers be submitted into and be held in a central database at the network and easily accessible to Law Enforcement through the application of legal instruments. (This requirement is imperative considering the current proliferation of service providers and sub-service providers where information is currently held over the country, and often difficult to speedily access. It would be defeating the true intention and effectiveness of this act as a Law Enforcement measure to not include this information and not keep it at the Networks i.e. single points of access).

The implications of the Bill are that foreigners who visit South Africa also have to register before they can 'roam' in the country. Although the Bill provides for exemptions by the Minister for a specific period and under exceptional circumstances, it is respectfully submitted that the envisaged registration process (at ports of entry) may not only be a source of great inconvenience for visitors to South Africa but may also lead to congestion and delays at ports of entry. The SAPS is already in a position to obtain the details of foreign users without a formal registration process. This capacity can be further enhanced by providing in the Bill that cellular networks must only ensure that details of roamers' communication data are readily available on the request of law enforcement agencies within a period of twelve hours of that MSISDN/IMSI number becoming active for the first time on the host (SA) network.

It is further proposed that with due cognizance to the technical implications of the aforementioned, the requirement in Section 41 that cellular instruments that are lost or damaged be reported to the police, be removed from the Act. As a subject of crime, it is important that an instrument that is stolen, be reported, remains. Lost, destroyed or stolen SIM cards must still however be immediately reported.

This submission impacts on various sections of the Act beyond section 40, 41 and 39. Other sections that need to be revisited in respect of the registration of handsets are sections 51 and 55.

In conclusion it needs to be stated that the South African Police Service is of the view that the amendments and measures as proposed are fair and reasonable, achievable and to the long-term benefit of the community and the objectives of Law Enforcement in terms of limiting the use of cellular telephony in criminal activity. It is important to note that a fine and acceptable balance be found in respect of what government wants to achieve, Inconveniencing and over-regulating of an activity of cellular use that has become a part of our very existence should be avoided. The South African Police Service is satisfied that the proposals in this submission, should they be enacted, are sufficient at this stage to enable it to fulfill its constitutional obligations.

Kindly note that the SAPS is willing to brief the Committee on the Bill, should you deem it necessary, If that is the case, I have mandated Assistant-Commissioner Phillip Jacobs and Director Francois Van Graan of the SAPS's Legal Services, as well as Director Mark Hankel of the Division Crime Intelligence to convey to the Committee the views and concerns of the SAPS.

With kind regards.

C NQAKULA, MP MINISTER