31 October
2007
Kgoshi ML
Mokoena
Chairperson:
Select Committee
on Security
and Constitutional Affairs
Parliament of
P.O
8000
Dear Sir
Regulation of Interception of Communications and Provision of
Communication-Related Information Amendment Bill [B 9B-2006]
I have been following the debates
regarding the abovementioned Bill with interest.
Unfortunately there is little
direct public communication regarding the matters under debate. Civil society
has to rely on newspaper articles and other summaries of discussions on
detailed and technical matters. This complicates the participation by civil
society in the debate. This is unfortunate because the Bill holds grave
implications for ordinary citizens. The debate seems to have shrunk to one
between the Department of Justice, that wishes to enforce an identification
process in relation to cellular phone users, and the electronic communication service
providers that have raised a variety of practical objections in this regard. It
seems as if it might be assist the legislative process if the debate could be
enriched with more concrete information regarding two key matters. In the
process of probing these matters the Committee will also ensure that it
considers key issues relating to the interests of citizens.
On 30 August 2007, Legalbrief published
the following summary:
“Cellphone-tapping
Bill approved in National Assembly
Although a draft cellphone-tapping Bill would entail ‘some inconvenience’ for
most South Africans, it was a ‘necessary evil’ and an important tool to fight
serious crime, MPs heard yesterday, according to a report in
The Mercury. Justice Minister Brigitte Mabandla
told the National Assembly that although cellphone service providers still had
reservations about the Regulation of Interception of Communication and
Provision of Communications-Related Information Amendment Bill, it was time for
implementation rather than arguing about its content.”
This excerpt highlights to two key
aspects that should receive more attention by Parliament before the Bill is
finalized:
1 Why is the Bill regarded
as “an important tool to fight serious crime”, or, in other words, what are the
benefits that will be derived from the Bill?
2 What is the impact that
the Bill will have, or more precisely, what is meant by “some inconvenience for
most South Africans”?
In essence, these two questions
also form key pillars of a regulatory impact assessment, a process that the
government of
1 Regulatory impact
assessment
The Competition Commission commented as
follows on a regulatory impact assessment in Regulatory Inflation: The Role of
the Commission and Regulatory Impact Assessment (2004):
“A regulatory impact assessment (RIA), also
known as a regulatory impact analysis, is a form of a regulatory cost-benefit
analysis tool, a means of appraising the costs and benefits of proposed
regulation and evaluating the performance of existing ones. … The use of a RIA
helps policy makers to ask such questions as: Is there a need for this law, and
for how long? Will it meet its objectives? Is it the most cost-effective method
of protecting the public interest? Will it have unintended side effects? What
are the likely benefits of this law? What about the costs to firms/society? etc.
Most countries, at different stages of
development, now have RIAs in place that allow lawmakers to justify whatever
law they propose by enabling them to compare various options, identify costs
and benefits for each option and choose the option with the least cost, whose
benefits exceed the costs. It is time that
The South African government has embraced the concept of a regulatory
impact assessment. The following was stated in the 2006 annual report of the Accelerated and Shared Growth Initiative for
“The Presidency and
National Treasury completed a joint study on Regulatory Impact Assessment in
September 2005. This is a system for managing legislative processes to avoid
unintended negative consequences for job creation, and other social and
economic goals of government. The study results indicate that the Regulatory
Impact Assessment is suitable for
In his State of the Nation
Address on 9 February 2007, the president of
“In this regard, in order to further to
speed up the implementation of AsgiSA, over and above the multi-year programmes
announced in the recent past, government will this year ….:
… [A]lso take a variety of steps to
improve competition in the economy, among others to lower the cost of doing
business and promote investment, including practical introduction of the Regulatory
Impact Assessment (RIA) system, developing high-speed national and
international broadband capacity, finalising the plan to improve the capacity
of the rail and port operators, and strengthening the effectiveness of our
competition authorities.”
The government
therefore appreciates the value that a regulatory impact assessment can add to
ensure that laws and regulation are structured to attain the most benefit in
the least costly manner. Government is currently piloting these assessments and
it is unlikely that the Bill would have been subjected to this scrutiny.
However, I believe that the Committee will be able to enrich its deliberations
and add value to the end product if it considers the two key issues, namely the
benefit that the Bill holds for law enforcement and the disruption and costs
that it will occasion. In this regard, the Department and the service providers
can assist the Committee by furnishing it with the necessary information and
data. Once the Committee is armed with this information it will be in a
stronger position to determine the matters currently under debate.
In this process, I believe it will be of value to consider
the following aspects:
2 The benefits of the Bill
The Bill attempts to
enforce identification of users of cellular phones to ensure that criminals,
especially those engaged in serious and organized crime, can be correctly
identified when their communications are intercepted. The extent to which this
benefit will be derived depends, however, on a number of factors, such as the
following:
1 The legal and
technical ability to intercept those calls in which matters pertinent to law
enforcement are discussed.
2 The extent to which
criminals who engage in serious and organized crime will present original and
secure identification documents to the service providers.
3 The number of
fraudulent and fake South African identity documents that are available.
4 The ability of
service providers and their agents to correctly identify fraudulent and fake
identity documents and passports.
It is important that
Department furnishes the Committee with adequate information regarding these
issues to enable the Committee to determine the value that law enforcement will
derive from the Bill.
The availability of
false and fraudulent identity documents is worrying, but the information in the
public domain about the extent of this phenomenon is mainly anecdotal. On 31 October 2006 Special
Assignment – The quest to buy citizenship, for instance, investigated the
claims of a Zimbabwean woman to “buy” South African citizenship. She alleged
that at least half of all Zimbabweans and foreigners she knows have bought
themselves South African identity documents and refugee papers. In the course of the programme, the
journalists were able to buy four identity documents, a temporary identity
document, a temporary refugee permit and several birth certificates. Facts such
as these raise serious questions about the integrity of our national
identification system.
It seems as if the
integrity of the national identification system may improve once the national
identity card has been launched. However, it the current level of integrity of
identity documentation is not sufficient to warrant the costs of this Bill, it
may be better to keep the Bill on the back burner and to revisit the issue once
the new cards have been rolled out. If this is not done, the Bill may only
ensnare the naive, amateur criminals, while professional criminals will be
unaffected.
In addition, it is
important to view the benefits of the Bill in context. Criminals do use mobile
phones extensively, but they also use other communication means, for instance,
fixed-line telephones, public phones, email and increasingly VoIP systems such
as Skype. If the Department wishes to close loopholes, the Bill will need to
enforce similar identification requirements on persons who are allowed access
to a fixed-line telephone, customers of internet cafes and users of the
internet that may use Skype. I do not believe that a workable system can be fashioned
to cover these communication methods in a similar manner, but the Committee
must decide what benefits the Bill will hold if the other communication methods
are left open to abuse and whether that benefit justifies the costs that it
will impose on society.
3 Regulatory costs
3.1 I have not seen the
results of any costing study that the providers undertook in relation to the
implementation of the Bill. I think it is important to consider the relevant
expenses that will be incurred, especially those that will be passed on to
their customers. In addition, it would be important to estimate the costs that
individual customers may need to incur to meet the new requirements, for
instance to procure the necessary documents. These expenses will increase the
costs of access to the relevant communication services. Poor consumers are
vulnerable to small increases in costs. An increase in costs will bar some of
the poor customers, either wholly or partially, from using communication
services that they currently access. From a socio-economic perspective it will
be therefore be important to estimate the number of persons that will find
themselves excluded from these services due to costs.
3.2 The Bill will furthermore
limit access to communication services to those who can provide an
“identification document” as defined in the Bill. In this context, it is
important to consider the impact on those who are not in possession of such a
document.
·
In her 2006 budget
speech (30 May 2006) the Minister of Home Affairs, Mrs Mapisa-Nqakula, quoted
from a report that estimated that approximately 1.5 million South Africans over the
age of 16 do not have a green bar-coded identity document. This represents 6%
of South Africans eligible for identity documents.
As the Bill currently stands, this group of South Africans
will be denied access to the relevant communication services.
·
On 4 September 2007 the Director-General of the Department
of Home Affairs was reported in The Mercury as saying that it took more than
100 days on average to produce an identity document and that there was a
backlog of more than 600 000 documents.
(http://www.themercury.co.za/index.php?fSectionId=&fArticleId=nw20070904223938837C705891)
A person without an identity document will therefore have to
wait for an average of three months to obtain the document in order to access
the relevant services.
·
Refugees have also voiced their frustration at the time it
took for the Department of Home Affairs to issue a refugee identity document.
On 11 September
2007 the following was stated in an article entitled “Home Affairs delays tie
refugees in knots” by Peter Luhango:
“Long delays by the
Department of Home Affairs in issuing refugee identity documents are causing
problems for refugees, who say they are sometimes received just before their
expiry dates.
The documents are
valid for two years from the date of application, but delays after applications
are lodged can see them being issued only shortly before the end of the two
years.
Unlike Section 22 and
Section 24 permits, which allow newly arrived refugees to stay in the country,
refugee identity documents allow access to a South African passport, bank accounts,
health services and other facilities.
Without the
documents, refugees are in limbo.”
(http://www.iol.co.za/index.php?click_id=79&art_id=vn20070911113025359C525635&set_id=1)
The Bill in its current form therefore will therefore exclude a
substantial number of persons from the relevant communication services. It will
do so, not because they are criminals, but simply because they are unable to
apply for or obtain the relevant official identity document. The impact will
not only be confined to them but will extend to anyone who wishes to
communicate with such a person. The broader social and economic consequences
must also be considered in this regard. Many South Africans earn a livelihood
as builders, tilers, painters, plumbers etc in the informal sector of the
economy. These persons are linked to their existing and prospective customers
by their cellular phones. How long will it take for such a person to be restore
communication with his client base and therefore be back in business, if his
cellular phone and identity book are simultaneously stolen?
3.3 In addition, the Committee should consider
whether there are cheaper ways to reach the objectives of the Bill. Is it, for
instance, necessary to compel every person to verify his identity and
residential address by presenting documents? The current definition of
“identification document” appears to require the presentation of an original
document. Is it possible to allow providers to accept reliable, electronic or
other copies of the document? Is it possible to allow a provider to rely on a
comprehensive verification process that was followed by another institution? If
a the person concludes a contract with the provider and payment will be made
from a bank account, that person will already have identified himself or
herself to the bank for purposes of the Financial Intelligence Centre Act 38 of
2001. Does it add sufficient value to compel that person to repeat the process
if she wishes to access any of the relevant communication services? Will an
employee of a service provider be in a better position to identify a
professionally faked identity document than an employee of a bank?
It is important to consider this matter,
because much of the potential impact on users can be diminished if providers
are allowed to rely on previous verification processes, on reliable copies of
documents and on identification data that is contained in existing databases.
3.4 The Bill compels citizens who sell or make
their phones available to non-family members or who buy or obtain such
services, to immediately provide their service provider with specified
information (section 40(5)). Those who fail to do so, commit an offence and is
liable on conviction to a fine or imprisonment for a period not exceeding 12
months (section 51(3B).
It is important to consider the investment in
law enforcement to properly enforce this provision. What is the capacity that
the state requires to take action if, for instance, 1% of all current users
fail to comply with this statutory obligation? Is that capacity available and,
if not, would it not be better to consider alternative means of enforcement?
3.5
The Bill currently provides that the identification and verification
processes must be completed within 12 months in respect of all current
customers (section 62). Whether this is or is not a reasonable period depends
on the facts:
·
How many customers will need to be submitted
to these processes?
·
How long will it take service providers to
adopt the necessary policies and procedures and to train the employees and
agents that will need to perform the procedures?
·
How long will it take to communicate the new
requirements and the importance of cooperation to the customers?
·
How many customers will need to be identified
daily to meet the deadline?
These procedures are additional to the current work
of the employees and agents of the service providers. If the deadline can only
be met by appointing additional staff members, the costs of the process will
increase. These costs will increase the rate of exclusion of the poor as
mentioned in 3.1. Such costs can, however, easily be limited by extending the
deadline.
4 Conclusion
This legislation can make a contribution to law
enforcement in
Yours
sincerely
Professor Louis de Koker
Director:
Centre for the Study of Economic Crime
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