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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
19 February 2002
INTERCEPTION AND MONITORING BILL: DELIBERATIONS
Chairperson: Adv J H De Lange (ANC)
Documents handed out:
Interception and Monitoring Bill [B50-2001]: Working document, Draft 2
The Committee met to discuss changes made to the second draft of the working document of the Interception and Monitoring Bill. The Committee went through the seven exceptions listed in Chapter 2 to the general prohibition on interception and monitoring. The exceptions were drawn from existing legislation in other jurisdictions. Various recommendations were made where clauses appeared to overlap or be inadequate.
Mr Labuschagne, the Committee's parliamentary legal advisor, was present to answer the Committee's questions on the new draft of the Bill.
The Chair began the meeting by stating that Mr Labuschagne had worked hard on the Bill during the recess and the Committee could now start working through this revised draft of the Bill. He thought it best to skip the definition sections and only refer back to those definitions that pertained to the provisions under discussion.
Chapter 2: Interception of Communications: Part 1
The Chair continued that Chapter 2 of the Bill had been altered quite dramatically and most of the section had been replaced. Part 1 of Chapter 2 sets out the general prohibition, while Part 2 lists the exceptions to the prohibition. The meaning of the term "communication", mentioned in the section, was found to refer to both direct (e.g. audible speech) and indirect (e.g. telephone tapping) communication. The words "subject to" at the beginning of Clause 2(1) indicated that there were exceptions to the provisions. The original Bill had had three exceptions, but Mr Labuschagne had added four others, identified in similar legislation in other jurisdictions of the world, so that there were now a total of seven exceptions. The words "subject to" in subclause (2) and (3) referred to clauses further on in the Bill, which allowed for the application of a court order, the authorisation required for a Service Provider (SP) to provide information to others, or for a customer himself to request such information.
Part 2: Exceptions to Prohibitions
The Chair stated that clause 4 was an authorisation provision, which allowed any authorised person to request a court order for the interception of communications.
Mr Labuschagne referred to footnote 22 which suggested that the clause be deleted as it was a duplication of clauses 29(2)(a) and 31(2). He recommended that clause 4 therefore be read together with clause 29.
The Chair enquired as to which provision provided for specific authorisation by the courts to grant the relevant order.
Mr Labuschagne replied that no specific clause provided this, but that it was dealt with under Chapter 4 as a whole.
As there were no further questions, the Chair suggested that the clause be left with a question mark with regard to its deletion and the inclusion of a specific authorisation by the courts to grant the direction.
Ms Chohan (ANC) questioned whether, judging from the wording of the provision, there had been an old section that allowed for the authorisation by the courts.
Mr Labuschagne responded that, at present, the Bill set out the prohibition and then the authorisation and, by implication, authorisation by the judge. Everything had to be read together. The Chair's suggestion was that a distinct provision should be incorporated that would list, as an exception, that a judge could issue the authorisation.
The Chair added that it was the most important exception and legally it did not make sense not to add it. There were other clauses in the Bill that made reference to it, but none which stated the principle.
The Chair referred to the definitions of "real-time call-related information", which is available to the SP for a period of 90 days, and "archived call-related information", which is available for a period of 12 months after the expiration of the 90 days. He questioned the source of the 90 day and 12 month figures.
Mr Labuschagne replied that this was the procedure followed by the SP's who stored the information relating to a call as "real-time call-related information" for 90 days and then archived it for 12 months.
The Chair asked if this had been added as a request from the SP's.
Mr Labuschagne answered that it had been copied from legislation in other jurisdictions.
The Chair decided to flag the question for the moment.
Mr Mzizi (IFP) enquired about the term "law enforcement officer" which had been deleted in Clause 4 but which remained in Clause 5, and whether the term incorporated traffic officers who might be deemed to be law enforcement officers.
The Chair responded that the definition of "law enforcement officer" was clearly stated in the definition section and must be distinguished from that of "applicants". Only applicants could apply for court authorisation, while law enforcement officers were restricted to executing the order.
The Chair read through the definitions relevant to Clause 4 and was of the opinion that, on the face of it, they all appeared complicated but nonetheless correct. He enquired about the definition of "customer".
Mr Labuschagne replied that there were two options for the Committee to choose from.
The Chair suggested that the first one included pre-paid contracts but the second did not.
Mr Labuschagne explained that SPs considered pre-paid customers to have an implied contract with them because they regarded their use of a service to be acceptance of an offer to do business, thereby creating a contract. The two different options in the definition were included to give the Committee an opportunity to specifically included pre-paid contracts.
The Chair responded that the Committee could make that decision later, together with deciding whether or not to delete Clause 4 and the specific inclusion of court authorisation.
The Chair stated that Clause 5 related to the interception of a communication by a party to the communication. The clause had been included in the Act previously, but was now amended. The clause allowed for the interception of a communication by a party to it, including a policeman, unless done for purposes of committing an offence.
Mr Labuschagne added that a law enforcement officer must meet the requirements of subclause (i) and (ii) before a court order could be granted.
The Chair enquired as to the content of Clause 11(1) referred to in subclause (i) and (ii).
Mr Labuschagne replied that Clause 11(1) listed the grounds for the issuance of an interception direction. Examples were the probability of a serious offence about to be committed, or the gathering of information concerning an actual or potential threat to the public health or safety. These must be established before the application was made and must be coupled with the requirement for urgency.
The Chair pointed out that this was not the same as in the US where law enforcement agencies did not need to meet such criteria to be granted an order. This contrasted with the position taken by Canada, which did not allow interception at all. The Australian approach, which the South African legislation sought to emulate, was a compromise between the Canadian and American approaches. Interception was allowed, but subject to certain conditions.
Mr Mzizi (IFP) referred to the terms "any authorised person" in Clause 4 and "any person in Clause 5. He questioned whether the meaning of "any person" was the same as that in the Criminal Procedure Act where it allowed any person to effect an arrest.
The Chair replied that it was the same. In a discussion between two people, either one of them could authorise the interception of the discussion. This followed the rationale in the US cases.
Mr Mzizi (IFP) questioned whether this was not a violation of the other person's constitutional rights.
The Chair responded that it was not because if a person did not want to impart the information, he should not have said it in the first place. The position taken in the US is that if the courts can rely on oral testimony by a person party to a conversation, why then should a record of the conversation not be admissible, particularly since it was bound to be more reliable than a person's memory.
Mr Mzizi (IFP), referring to the Staggie case, asked why the testimony of the journalist was required in addition to the record.
The Chair distinguished the case on the basis that the journalist was not required to give testimony relating to a conversation, but rather to authenticate the video by evincing that it was filmed at a certain time in a certain place.
Mr M T Masutha (ANC) enquired as to the extent the right to remain silent applied.
The Chair responded that he did not think it applied at all. He suggested Mr Masutha read the US cases to get a better understanding. He said the problem arose in connection with the police who might abuse their positions, this is why the authorisation was subject to conditions. The problem was where to draw the line. There were a multitude of situation where interception would not be wrong, but the decision to allow it and under what terms was a policy decision. Even in Canada interception was allowed where a person's life was at risk. He suggested that the issue be discussed further when all the members had read the cases.
Mr Masutha (ANC) questioned if the Bill, as it stood, prohibited a third party from recording or intercepting a conversation that was overheard, for example, if he heard passers-by plotting to commit a crime.
The Chair replied that third parties were not prohibited from doing so.
Mr Masutha (ANC) then asked if the same applied to policemen.
Mr Labuschagne replied that it did as the as the present definition of "party to a communication" stood.
The Chair remarked that the definition included people within the "immediate presence" and where the communication is "audible to the person concerned".
Mr Masutha (ANC) asked if the provision still applied if the parties to the communication were unaware of the presence of the third person.
The Chair answered that it did.
Mr Masutha (ANC) commented that the Bill therefore did not distinguish between an ordinary person and a policeman in this respect. The Chair was of the same opinion. Mr Masutha then questioned the relevance of the law in the light that the term "party to a communication" was being extended to include those not really a party to the conversation.
The Chair responded that the definition only applied to direct conversation, which very rarely was an issue. The vast majority of cases dealt with indirect communication, such as telephone tapping. The Bill sets the parameters for the recording of direct or indirect communications, for the first time in South African law. The issue was also one of policy and not of law. In this respect, every country decides what is best for itself.
Mr Chohan (ANC) did not agree that direct communication scenarios extended into the realms of privacy because if you were a party to a conversation, you could give testimony of it in a court of law. If you overheard a conversation, you could still give testimony. The question regarding a recording of a conversation was clearly one of policy.
Mr Masutha (ANC) said that the question arises as to the issue of publication. There was a distinction between access to first-hand information and the situation where that information is passed on.
The Chair was of the opinion that this was not a question of law. There was nothing sacred about voicing an opinion. Whether or not the opinion amounted to defamation was a separate matter. The problem that needs rectifying is the abuse of police power where, for example, policemen try to clandestinely listen in on private conversations. The Australians seem to have found a middle path in this regard.
Mr Masutha (ANC) enquired if the Bill should only be confined to criminal and not civil liability?
The Chair explained that the Australian legislation dealt only with the issue of criminality, but it was important to read the US cases to get a wider understanding of the issues.
The Chair noted that Clause 6 regulates the interception of a communication with the consent of a party to the communication and was based on the US and UK Acts. Subclause 2 lists the grounds on which a law enforcement officer may intercept a communication. In this respect it made sense to set out criteria to prevent abuse.
Mr Labuschagne added that in Australia, any person who is a party to a conversation, including a policeman, must still apply as soon as possible, for a direction from the court.
Mr Solomon (ANC) questioned whether "the party" in subclause (i) included third parties.
The Chair replied that consent must be given by one of the parties and did not distinguish what category of person it applied to. The word "parties" could therefore create a potential problem. It could be interpreted to include bystanders but he did not think that was the intention of the provision. Different wordings may have to be looked into, for example, "one of the participants" could be used in its place.
Mr Labuschagne said that the provision could be altered so that only the recipient of information could give consent as surely the person providing the information would not give information that could be used against him.
The Chair did not agree and felt that there could be situations when the consent of either party may be required. The problem arose from the plurality of the word "parties". He felt that it should perhaps be changed to "party" and that the definition specifically exclude third parties.
The Chair noted that this regulates the interception of indirect communication for purposes relating to provision or operation of telecommunication service. The provision allows SPs to track or intercept communications with the sole purpose of establishing if an illegal interception device is being used. He was unsure as to the meaning of subclause (b).
Mr Labuschagne explained that subclause (b) allowed an SP to intercept an indirect communication for purposes relating to the maintenance of their systems.
The Chair was a bit hesitant about this clause as he felt there was no purpose attached to it. He felt that it gave SPs carte blanche to tap phone lines for purposes of establishing if they were working or not. Another aspect was that the provision was linked to Clause 10 which related to the carrying on of a business and perhaps the provision would fit in better there.
Ms Chohan (ANC) commented that the Australian Act made it a lot clearer as to what the intention was and she could not understand why the provision was in this Bill.
The Chair replied that even if it was for the purposes of maintenance, it still amounted to interception. Mr Labuschagne added that the provision was based on US legislation. The Chair felt that the provision should be flagged and considered at a later stage.
Mr Labuschagne stressed that the exceptions that he had included were the major ones that he had drawn out of legislation in other jurisdictions. He said that the Committee should feel free to delete those they felt were not applicable.
Clauses 8 and 9
These clauses regulate SPs. The Chair was unsure whether subclause (a) and (b) of Clause 8 was necessary as it appeared to be covered elsewhere. He also felt that Clause 9 was a repeat of Clause 7(a) which allowed for the tapping of a phone to establish if an illegal device is being used. He thought it possible to incorporate 7, 8 and 9 into Clause 10.
Mr L Landers (ANC) asked why it was not a problem for the SPs to intercept communications while it was a problem for the police to do so?
The Chair replied that the SPs were doing it on behalf of the police as the police did not have the equipment. This exception merely allowed for the checking of the system to see if an illegal device was being used.
Mr Landers (ANC) felt that the problem was that the SP was given the authority to intercept without having to ask for authorisation to do so. The Chair agreed.
Ms Chohan (ANC) asked what the situation was with regard to a person calling Telkom and enquiring if there was a tap on their phone.
The Chair thought that to be a separate issue, but that another clause could be added to allow a customer to check if there was an illegal tap on their phone. This should be made one of the principles of the Act unless it was otherwise covered by the confidentiality clause.
The Chair read briefly through Clause 10, which regulates the interception of indirect communication in connection with carrying on a business. He felt that subclause (ee) covered Clauses 7 and 8, but could not identify the difference between subclause (b) and (c). He could not see the purpose of including subclause (b), (c) and (e). He felt that subclause (d) was problematic as not every person in the business needed to know that a person's phone was being tapped. Only the person concerned should know. In theory it could be made part of the employment contract that an employee be warned that his or another's phone could be tapped. As the Act presently read, a person's phone could not be tapped if any of the other employees in the firm were not aware of it. The Chair enquired whether subclause (ee) covered Clauses 7 and 8.
Mr Labuschagne replied that Clause 10 specifically referred to systems of business and not SPs and Clauses 7 and 8 did.
The Chair commented that an SP was a business.
Mr Labuschagne responded that he was always under the impression that it meant something different, that is, private business. If it were read the other way it would give carte blanche to them to intercept anything.
The Chair suggested that SPs then be specifically excluded.
Ms Chohan suggested that the provision related to in-house systems and not outward systems.
The Chair asked what the difference was between Clauses 8 and 9.
Mr Labuschagne replied that his personal point of view was to include only Clause 9 and do away with the other provisions.
The Chair requested that Clauses 7(1)(b) and 8 be put in brackets so that they could be removed later but the Committee would still be able to view them. Clause 9 appeared to him to be legally stronger. He also recommended that it be examined whether Clauses 10(2)(b), (c) and (e) needed to be there and whether a simple clause providing for the issuing of a court direction could be included. It did not make sense not to explicitly include the most important exception.