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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
30 APRIL 2002
INTERCEPTION AND MONITORING BILL: DELIBERATIONS
Acting Chairperson: Ms F Chohan-Kota (ANC)
Documents handed out:
Interception and Monitoring Bill: Working Draft 3
The Committee deliberated on clauses 28 to 37 of the Bill. The provisions allow for inter alia the establishment of interception centres at the State's expense (cl 28) and tariffs/remuneration to be negotiated between the SP's and the State with the Minister to be consulted in the event of an agreement not being reached (cl 29).
Chapter 6 lists the duties of SP's and customers. Clauses 30 and 31 place an obligation on the sellers of telecommunication services, cell phones and SIM-cards to obtain identification information relating to the purchaser. Clause 32 requires an owner whose cell phone or SIM-card has been lost, stolen or destroyed to report such loss to the police within 24 hours, non-compliance of which amounts to an offence.
Chapter 7 relates to general prohibitions and exemptions. There is a general prohibition on the disclosure of information (cl 33) with an exemption made to authorised persons for the performance of official duties (cl 34). The Minister is required to specify listed equipment (cl 35) which may then not be manufactured, possessed or advertised (cl 36). Exemptions to this provision may be granted upon application to the Minister (cl 37).
The Chair asked Mr Labuschagne, the department's legal advisor, to take the Committee through the clauses of the Bill, beginning at clause 28.
Clause 28: Interception Centres
Mr Labuschagne stated that clause 28 governed the interception centres. Sub-clause 28(1)(a)(i) provides that all law enforcement agencies must, at the State's expense, establish and maintain interception centres for the interception of communications in terms of the Act. There had previously been some debate over who should bear the costs of the interception centres and the previous draft had been quiet on the issue.
The Chair inquired as to whom "the Service" referred to.
Mr Labuschagne replied that "the Service" referred to the Secret Service while "the Agency" referred to the Scorpions. Moving on to subclause (2), he said that a few new sub-clauses had be introduced because the Service Providers (SP's) had indicated that systems provided by the state must be consistent with their existing systems. The new clauses ensure that the systems are compatible so that no damage can be caused to the existing systems. However, this was a principle for the Committee to decide upon.
The Chair questioned the two month time period given to the Minister to ensure that the systems were in place.
Mr Labuschagne indicated that the two month period set out in the Bill was flexible and that the important thing for the Committee to decide upon at the moment was the principle. Moving on to sub-clause (3), he said that the provision allowed for, for example, a direction issuing a communication intercepted in East London, to specify that it be sent to the interception centre in East London. This clause had been in the Bill since the beginning and there was not major principle behind it.
Imam Solomon (ANC) suggested the possibility of there being foul play on the part of the SP's since the compatible connection would be a two-way system.
Mr Labuschagne replied that one a connection was intercepted it would be sent to a communications centre and was therefore not a two-way system but a one-way system although, not being a technical person, he could not explain the intricacies of it.
Clause 29: Remuneration & tariffs
Mr Labuschagne explained that clause 29(1)(a) provided that the Minister must prescribe, by notice in the Gazette, forms of assistance which must be remunerated and the tariffs of remuneration. He referred the Committee to footnote 59 which states that the SP's had expressed a preference for the present situation which allows them to reach their own agreement with law enforcement agencies on the tariffs or remuneration payable to them, and only in the case of them being unable to reach an agreement will the Minister be consulted.
The Chair did not think that this would be too much of a concern because the Minister would have regard to what the tariff was anyway. She was unsure that the provision should be in the Bill at all since it created the potential for the application of non-uniform rates.
Mr Labuschagne moved on to subclause (2), which lists the main forms of assistance. He explained that the list was not limited to those specifically mentioned and therefore made allowance for new technology that may later be developed. Subclause (3) provides for remuneration only in relation to direct costs.
Dr Delport (DP) stated that the provision regarding tariffs should not give a blanket discretion to the Minister. He felt that if the matter were taken to court, the court would decide if the tariff/remuneration were reasonable or not, and therefore the word "reasonable" should be inserted into the provision.
The Chair remarked that Dr Delport had not been present earlier when Mr Labuschagne had explained that the police and the SP's negotiated a tariff. Ultimately the Minister would negotiate if there were a disagreement and that was the discretion that they wanted to give to him. She was of the opinion that it would be "reasonable" in any case and was unsure of how the insertion of a test for reasonableness would be of assistance if the two parties were negotiating a tariff.
Dr Delport (DP) commented that he had not seen a reference to negotiations in the Bill.
The Chair replied that that was something that would occur in practice.
Dr Delport (DP) accepted that but still felt that the tariff should be reasonable.
The Chair replied that that was why the clause further went on to state what should be taken into account when deciding on a tariff.
Dr Delport felt that it would be better to prescribe that the tariff/remuneration be reasonable although he conceded that it would make little difference in practice if it was known that it was going to be reasonable in any case.
The Chair suggested that if reasonable tariffs were prescribed, that one SP could then argue that his higher rates were reasonable because their general costs were higher.
Dr Delport then suggested that the costs over and above the tariff rate be born by the SP.
Mr Labuschagne did not agree that because the facilities of one SP were more costly than another that the tariff rate should necessarily be higher since the same amount of work would go into the interception. He did not have a problem with including the word "reasonableness" in the provision but he did not see that it served any particular legal point. He suggested that it be inserted as an option.
The Chair recommended that the provision be formulated so that when the Minister determines the tariffs, the determination should be objectively reasonable and that remuneration should be determined according to the tariff and not the direct costs.
Mr Labuschagne said that he would insert the word "reasonable" in the provision so that all SP's would get the same tariff.
The Chair favoured something in the nature of Dr Delport's wording that "any costs over and above the tariff would be borne on the part of the SP".
Mr Mzizi (IFP) questioned the purpose of subclause (4), which provides that any notice in terms of subclause (1) be submitted to Parliament before publication in the Government Gazette.
The Chair remarked that this was for purposes of tabling, however it could state that it must be passed by Parliament or that it should be brought to parliament to be looked at or make comments before being published in the Government Gazette.
Mr Mzizi inquired if Parliament could change the tariff if it thought it unreasonable.
Dr Delport answered that this could be done by way of a motion or recommendation of Parliament.
The Chair agreed that this could be done by means of a recommendation.
Mr Labuschagne moved on to chapter six.
The Chair inquire if all the provisions in bold were to be removed.
Mr Labuschagne replied that they would be dealt with separately in other clauses.
Chapter 6: Duties of SP and customer
Mr Labuschagne explained that the different clauses had been formulated to satisfy all the different interested parties and so the chapter was divided into three sections relating to Telkom, the internet and SIM cards.
Clause 30: Information to be obtained and kept by telecommunication SP
Mr Labuschagne elaborated that clause 30 did not apply to mobile cellular SP's. The clause requires a telecommunication SP, when entering into a contact with a person for the provision of a service, to obtain and keep a copy of his/her name, identity number, residential address and a photocopy of that person's ID document. It also requires the SP to check that the ID document is correct.
Ms Camerer (NNP) inquired if this was a departure from the current process.
The Chair responded that presently you could do it over the phone.
Ms Camerer asked what the effect of this was and whether it would only apply to new customer or if the old ones would have to follow this procedure as well.
The Chair felt that it would only apply to new people.
Ms Camerer commented that it would then not apply to the majority of people.
Mr Landers (ANC) felt that it would as everybody would have to renew their contracts after two years.
The Chair was not sure that one would have to renew a contract for a landline.
Ms Camerer was not sure why the provision was in the Bill as most people would remain unaffected by it. she also could not understand why subclause (1)(a)(ii) requires the personal information of a person representing a juristic person.
The Chair felt that the purpose was for identifying someone who used just the shell of a company as a front. She felt that they system was not foolproof but it would at least leave a paper trail that could be followed up on.
Ms Camerer did not see the point because the person could have been someone picked off the street and this was therefore an utterly futile provision.
The Chair disagreed. She felt that the purpose of the provision was to create a paper trail so that there would be at least a person to trace back to.
Ms Camerer did not think that it was much use if it only lead back to a temporary secretary who had only worked their for a month.
The Chair was of the opinion that it might work as far as the investigation was concerned. It would give the law enforcement agencies some sort of evidence or lead to follow up on. She emphasised again that it was not the best solution.
Mr Mzizi (IFP) inquired as to the situation regarding Telkom phone cards.
Mr Landers (ANC) responded that there was nothing that could be done about that.
Dr Delport (DP) agreed with Ms Camerer that the provision was not going to place any burden on criminals as the paper trail could be so thin that it could never be traced back. He felt that the burden was rather being put on the rest of society. He did not know how effective the provisions would be in small towns where there were no photocopying machines.
Ms Camerer (NNP) reiterated that there were lots of words on the page but did not believe that they would be effective.
Mr Landers (ANC) was of the opinion that some attempt had to be made at helping the law enforcement agencies. There was a problem but that did not preclude them from trying to help the law enforcement agencies from dealing with it. there might be a difficulty in enforcing it but that still did not prevent them from trying. He disagreed with Ms Camerer and felt that the provision was implementable.
An ANC member felt that it was unlikely that criminals would identify themselves. He referred to a case where a heap of identification documents were found all bearing the same name but with different photos. He did not know how the drafters were going to try and cap that loophole. Criminals were using cell phones to commit offences and they would never try to identify themselves. He advised against the use of words that would only apply to law-abiding citizens.
Mr Landers felt that if the provision were useless then it should be removed.
The member confirmed that he had not implied that the provision was useless but he did feel that workable solution should be decided on.
The Chair did not feel that all the problems concerning identification documents could be dealt with in this legislation. The aim was for the criminals to leave behind a paper trail that the police could trace back to the criminal. The question was revolved around whether these measures were going to be effective. She conceded that this was not the best way, but it was the only way open and could not be left out as a framework was being created within which interception and monitoring could happen.
Dr Delport (DP) said that he supported the necessity for intercepting but he questioned whether the information would play an important role in the interception. He was not sure that it would be effective and felt that the downside outweighed the upside.
Ms Camerer (NNP) held a similar view. She said that it was obvious that the best possible solution was wanted but it was no use to put all those words into the Bill and say that a good job had been done when effectively it would be of no use. How, for example, would the information be verified, and if it could not, why bother obtaining it if it could not be policed.
She also pointed out that the person responsible for obtaining the information would most likely be a clerk and did not feel that a person at that level would be able to verify the documents.
The Chair felt that in some circumstances it would be quite clear.
Ms Camerer (NNP) fundamentally objected to having words on paper that would not be carried out in practice.
The Chair felt that there was a difference of opinion as she did not feel that the provision was completely unnecessary. She agreed that it was not of a very good standard but did not think that it would not be applied.
Imam Solomon (ANC) could not understand the difference of opinion as landlines were not issued in any case without first obtaining the personal details of a person for purposes of facilitating payment.
The Chair asked if the retention of photocopies would be applicable to subclause (1)(a) as well.
Mr Labuschagne replied that it would in terms of subclause (1)(a)(i)(bb).
Mr Magwanishe (ANC) asked what constituted an identification document and if it was only the South African issued document.
The Chair replied that the definition was at the beginning of the Bill.
Mr Labuschagne elaborated that an identification document included the South African document, as well as birth certificates and passports for those who were foreigners. The definition was quite long in order to include all the different types of documents. He didn't think there was anything else of importance in the provision except that failure to comply with the Bill would be an offence.
The Chair asked Mr Labuschagne to take the Committee through the provisions relating to cell phones.
Clause 31: Information to be obtained and kept in respect of cellular phone & SIM-card
Mr Labuschagne explained that at present a lot of words had been struck out. The Bill had previously applied to people who sold phone but one had to take into account the fact that, for example, Nokia sells phones to MTN who sells them to CAN who sells them to people who give them away as gifts. As a result of these situations, the clause had been changed to include any person who sells, so as to leave a more extensive paper trail. The only question was whether it should stop at the person who gives away the phone as a gift. The system was not foolproof as it is possible to buy a cell phone with a SIM-card, while nothing can be done about existing cards and phones.
The Chair asked if a husband giving his wife a cell phone and not taking her ID would amount to a criminal offence. She felt that what differentiates the wife from the crook was that the person buying the phone is still able to comply with the provisions after a period of time has lapsed, while the criminal is not. She asked if there was another way to identify the person.
Mr Labuschagne felt that that would be opening the door for the crooks.
The Chair asked if any of the provisions were different from those applying to the Telkom scenario in clause 30.
Mr Labuschagne replied that nothing was different, they were exactly the same so all the same arguments would apply.
The Chair asked if anyone wanted to raise anything new here. She asked to be reminded about the argument concerning cell phones and SIM-cards.
Mr Labuschagne responded that the reason for a differentiation being made was because cell phones and SIM cards have separate serial numbers.
The Chair said that that was not the argument she was thinking of.
Mr Labuschagne posed the scenario where, for example, a phone was bought from MTN and when the contract expired the owner then chose to join Cell-C. He was not sure if the telephone number could be retained if the SP were changed.
The Chair thought that it was possible that one didn't have to change numbers if the SP were changed, especially since the prepaid turnover was higher as to the extent to which people shop around.
Mr Labuschagne pointed out that there was no obligation on the seller of a card in terms of this Act. He could not see why a person who bought a prepaid phone would change the number if he changed SP's.
The Chair remarked that one could not carry the number over if one changed SP's. She suggested that the provision be reworded in such a way that it would motivate consumers by being allowed to change SP's and retain their numbers. She felt that it would help consumers to organise their affairs.
Mr Labuschagne questioned if that was an issue that should be regulated in that section.
The Chair replied that it was not but it could be a consequence if the wording remained the same. One of the ways of the policing the Act would be to allow people to keep their numbers.
Mr Landers commented that he remembered another meeting at which the chairperson of that committee was making the same point about considering the issue seriously of keeping the same number if one changes SP's. Business people in particular had the problem of not wanting to change their numbers. He suggested that she speak to Mr Kekana on that issue.
The Chair replied that she would do that.
Mr Labuschagne said that furthermore the Bill provides that should one change SP's, one would not have to reapply the documentation if one kept the same handset and phone number.
The Chair inquired about non-compliance of the provision.
Mr Labuschagne replied that non-compliance was regulated under clause 43(1)(a)(i), which included "any person" as it did not only apply to SP's.
Clause 32: Loss, theft or destruction of cell phone or SIM-card to be reported
Mr Labuschagne explained that in terms of clause 32 any loss, theft or destruction of a cell phone or SIM-card must be reported to the police within 24 hours. The police official to whom the report was made must then issue proof to that person of the report having been made. The Minister must issue directions on what should be contained in the report. This was also regarded as a way of tracking cell phones.
The Chair asked for comments on the 24 hour time limit.
Imam Solomon (ANC) felt that it was a reasonable time.
The Chair was not sure if it was a reasonable time if one did not check regularly. She preferred the words "reasonable time" to be used.
Mr Labuschagne added that there could be practical circumstances in which one could not make a report.
The Chair was unhappy with the 24 hours as she found it onerous. She felt that the option should be kept but that it non-compliance was going to be made a crime that it should at least be increased to a 48 hour period.
Mr Swart (ACDP) asked what it meant to be reasonably aware of the loss. He was concerned that the formulation of the provision as it stood would place an obligation on a person to check their phone if they were not sure.
Mr Labuschagne replied that those same words were used in the Firearms Control Act. He was not sure as to their meaning but would check.
The Chair inquired if "destruction or loss" included it being misplaced. She could understand "destroyed" if theft was an issue but not in terms of it being misplaced as it was not crime related.
Mr Labuschagne replied that the idea was that if you could no longer use your phone then it should be reported.
The Chair felt that the new clause was fine and believed that it would facilitate things.
Chapter 7: General Prohibitions and Exemptions
Clause 33: Prohibition on disclosure of information
Mr Labuschagne pointed out that subclause (3) was a new provision.
The Chair inquired about the lack of future tense of the subclauses of subclause (3).
Mr Labuschagne replied that it would have to be inserted into clauses (b), (c) and (d).
Clause 34: Disclosure of information by authorised person for performance of official duties
Mr Labuschagne said that this clause was basically an exception to the general prohibition on interception and allows a law enforcement officer to disclose information to another law enforcement officer.
Ms Camerer (NNP) was concerned about the use of the word "appropriate" in the clause as it was a subjective test. She felt that the test should be one of necessity which would be in line with the rest of the Bill.
Mr Labuschagne said that he did not see any problem in changing it.
The Chair suggested that necessity be put in as an option and could then be thought about at a later stage. She asked Mr Labuschagne to explain clauses 33(1)(a) to (d) further.
Mr Labuschagne responded that law enforcement agencies argue that, in terms of clause 33, they are precluded from divulging information that they obtain in terms of a direction which is related to a crime other than that specified in the direction. Clause 34 therefore allows them to disclose this information to another law enforcement officer.
Clause 35: Listed equipment
Mr Labuschagne stated that in terms of subclause (1)(a), the Minister must, by notice in the Government Gazette, declare specific equipment as listed.
The Chair pointed that if public comment was wanted, it should not be published in the Government Gazette.
Mr Labuschagne responded that this was standard practice in order to draw the attention of SP's and private investigators.
The Chair was not sure that for that reason it should be in the Government Gazette and not in national newspapers when the intention was to invite comment from interested parties.
Ms Camerer (NNP) felt that this was not really something to publicise as it was only meant for the industry.
The Chair could not see why it should not be publicised. She asked for comments bearing in mind the cost of publishing in national newspapers.
Imam Solomon (ANC) asked if this was the normal practice.
Mr Labuschagne said that he could not say that it was the standard practice for all, but in some instances it was.
Imam Solomon (ANC) felt that there was no need for the government to spend thousands of rands in advertising when the media would publicise it in any case.
The Chair decided to move on to the next clause.
Clause 36: Prohibition on manufacture, possession and advertising of listed equipment
Mr Labuschagne explained that subclause (1) contained the general rule while subclause (2) listed the exception in terms of which authorised persons or the National Director may possess such equipment.
The Chair inquired if the National Director himself should do it. She suggested that it state clearly that it is otherwise.
Mr Labuschagne said that he would include the words "or someone authorised by the Minister" into the provision.
Clause 37: Exemptions
Mr Labuschagne stated that clause 37 provided for another category of people who have been issued with a certificate of exemption. Exempted persons specifically include SP's, these apply in particular to the smaller SP's, and telecommunication SP's and any other person who applies to the Minister. The clause has been drafted to give the Minister the discretion to, for example, allow one person to manufacture while another person may only purchase.
Ms Camerer (NNP) noted that she thought the Committee was only going to draft the foundations for such a provision.
The Chair responded that the exemptions would be granted upon application so all of the test relating to reasonableness would apply.
Ms Camerer stated that the purpose for being exempted were the limited resources for application.
The Chair replied that it could not be just that as surely there were a whole lot of things relating to it. She could not imagine that between two small companies, one would be granted some exemptions and the other not because clearly there would be a right of challenge. She felt the issue was whether or not they could be exempted.
Mr Labuschagne said that this was a difficult decision to take and did not think that the Committee should make the decision on that day.
The Chair suggested possibly looking at wording the provision under subclause (a) slightly differently to allow the Minister to grant limited compliance.
Mr Labuschagne felt that this was already covered by the subclause.
The Chair felt that although it may have been covered she still thought that there should be a legal framework for it.
Mr Labuschagne said that ICASA would still have to be involved and a lot of thinking would still have to go into the process.
The Chair, looking at footnote 70, felt that it should be considered as it was a reasonable suggestion and she liked it very much. She inquired where it had come from.
Mr Labuschagne replied that it came from the Internet Search Providers Association, which is one of the biggest associations in South Africa. He moved on to subclause (2).
The Chair remarked that this was going to be an evolving arrangement and provision should be made for that.