Regulation of Interception of Communications Bill (Interception & Monitoring Bill): deliberations

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Justice and Correctional Services

22 August 2002
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
23 August 2002
REGULATION OF INTERCEPTION OF COMMUNICATIONS BILL (INTERCEPTION AND MONITORING BILL): DELIBERATIONS


Chairperson: Adv J H De Lange (ANC)

Documents handed out:
Weekly notice of meetings (Appendix)
Regulation of Interception of Communications Bill

SUMMARY
The Committee dealt with the first 13 clauses excluding the definitions section of the Regulation of Interception and Monitoring of Communications Bill. Points of interest were that a greater provision should be made for an emergency situation and the requirements of the clause were varied. Other Acts would not be excluded from allowing monitoring to take place (such as Section 205 of the Criminal Procedure Act). It was indicated that the time for submissions on this Bill had passed and that organisations that had only woken up now would not be allowed to make oral submissions. Section 2 was altered and Clause 54 was brought forward in the act.

MINUTES
The Chair announced that in looking at the latest draft of the Regulation of Interception of Communications Bill [as titled in the latest draft], the Committee would simply go through the Bill and make sure that it was logical. Minor changes could be effected but it was specifically noted that no major policy changes were envisioned.

Chapter 2
Clauses 2 & 3
The Chair indicated that he had a problem with the phrase 'Subject to this act'. Other acts should be included and should not be excluded by the operation of this Bill. A Section 205 application (in terms of the Criminal Procedure Act) must also allow for monitoring to take place in terms of whatever other act allows for monitoring.

Mr. Labuschagne (Department drafter) pointed out that Clause 54 in Chapter 10's General Provisions would allow the operation of the other acts (i.e. other acts could be used to monitor communications). The Chair acknowledged this and requested that the clause be brought forward so that it is in the first part of the Bill - perhaps to Clause 2.

Moving to monitoring in the future, the Chair said that it was important that an order allowing the monitoring of conversations should be renewed every 3 months. (Thus Clause 54(2) - referring to the phrase 'ongoing basis' would be amended to 3 months).

The Chair then indicated that Clause 3, read with Clauses 5, 8 and 54, gives a clear picture of the current state of the law as regards monitoring.

Clause 4

This was accepted as satisfactory. The Chair also indicated that he wished the format of Part 1 and Part 2 to be made clearer.

Clause 5
This allows for a telecommunications provider to provide telecommunications information pursuant to a court order. This section was seen as acceptable.

Clause 8 was seen as necessary by the Chair but he considered that the section was open to abuse by telecommunications providers. Specifically the Chair was of the opinion that if the clause was allowed to stay as it was then the telecommunications providers would abuse the section by simply requiring consent to monitor communications in the contract with their subscribers. To avoid this, the Chair indicated that the words 'on each occasion' should be inserted so as to prevent this from happening.

Clause 6
It was noted that Clause 6 was in between the international positions. South Africa has gone wider than the Americans when drafting this legislation, the Chair said.

Mr. Jeffery (ANC) questioned the nature of a 'party' to a conversation. The definition of a party was quite complicated and is contained in the bill. Particularly he wanted to ask whether a third person who was listening below the window would be able to give 'consent' to monitor as Clause 6 anticipates.

Mr Labushagne indicated that the person must be a direct participant and that the eavesdropper would not be able to give consent.

Clause 7
It was suggested that 7(2) b was superfluous.

Mr Labushagne then indicated that he wished to refer the Chair to the ICASA submission. ICASA wished to be exempted from the Bill so that they would be able to monitor both the radio frequencies, which would occasionally include voice communication.

The Chair was most frustrated with the approach of government organisations such as ICASA which had had almost two years to make a submission and 'only wake up now'. In any case the Chair suggested that the definition of 'communication' might not include the monitoring of the radio spectrum.

Mr Labushagne also indicated that the Independent Complaints Directorate also wished for an exemption since that department investigated police officers.

The Chair rejected this notion and indicated that the added expense to the taxpayer could not be justified.

Clause 9
The Chair indicated that MTN had pointed out that there were various emergencies, such as boating incidents and kidnapping, where the information (content) of the message was very useful to resolve the emergency. It was suggested that Clause 9 should have the words 'and' rather than 'or'.

Mr Jeffery then pointed out that the section did in fact refer to 'and' and not 'or'. Thus Clause 9 (1) a, b, c, and d needed to be complied within Clause 9. (This was however seen as a little unclear at present).

Mr Jeffery also wished to know what the difference was between Clause 9 and Clause 10. The difference appeared to be between location and content. He suggested that the definition of 'parties' who could give consent in the circumstances was not logical, since there may well be a case where a kidnapper had obtained the cell phone of the person he kidnapped and was using it to speak to his accomplices. In that case the content and not only the location would be necessary. However it would be impossible to obtain consent since the owner of the phone was not present to give consent and none of the people actually would give consent.

The Chair conceded this point and also pointed out that the requirement of 'in writing' in an emergency situation was inappropriate.

Examining the question of ratification after the event it was said that this was done in Australia.

Mr Landers (ANC) then put forward that it was possible to monitor people by means of their cell phone even though the cell phone was not on. However he indicated that he was unaware of how this was done.

The Chair suggested that the best way to resolve the problem of Clause 9 was to change 9(1)(b) into 9(1)(a)(ii) which would in effect result in there being a third requirement for this section.

It was also acknowledged that the failure to set forth an affidavit by a police officer after the emergency had been concluded was an offence. In addition the Chair indicated that he supported the motion by Telkom that the telecommunications provider involved should also submit a report of the communications that were intercepted independent of the affidavit by the police officer.

Mr. Makwanashe (ANC) indicated that a minimum period should be set for the retaining of this information, and five years was suggested and approved.

Clause 10
It was suggested that the word 'may' should be replaced with 'must'. Moreover the information should also be kept for 5 years as was done with Clause 9.

Clause 11
Mr Landers said that it was common knowledge that technicians used users' accounts to make foreign phone calls. In the light of this it was not entirely clear why technicians should be allowed to overhear conversations and then have to report them.

The Chair indicated that the technician who overheard an offence being committed or planned would have to submit an affidavit not to the director of public prosecutors but to a judge. The judge would then keep the affidavit for 5 years. The point was made that the judge may need more space in order to deal with the added documentation.

Clause 12
This dealt with the monitoring of communications in the workplace it was seen as important that prior notice should be given to the employees that telephone conversations would be monitored, and that this should be included in the employment contact, or if there were not a contract in the workplace electronic communications policy.

Clause 13
The Chair indicated that Option 1 (regulations must be submitted to the committee, but need not be approved) would be approved and included in the bill. Referring to the Correctional Services Act it appeared that in spite of the fact that there was a new Correctional Services Act the old regulations were still in force. The Chair pointed out that this would be illegal unless it was specifically provided in the new act that the old regulations would still be in force. It was not known whether this was the case.

Meeting adjourned.

Appendix:
The Justice Portfolio Committee will be meeting as follows:
Mon 26/8 10.30 - 17.00
Tues 27/8 & Wed 28/8 9.30 - 17.00
Thurs 29/8 14.00 - 17.00
Fri 30/8 9.30 - 16.00

Committee meetings for the week 2 - 6 September will follow the same pattern

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