Regulation of Interception of Communications Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
27 August 2002
INTERCEPTION AND MONITORING BILL: DELIBERATIONS

Chairperson: Adv J H De Lange (ANC)

Relevant documents
Interception and Monitoring Bill - Draft 5

SUMMARY
Discussion on draft five of the Bill started at Chapter four and ended at Clause 51 of Chapter nine.

An important issue that was left undecided was whether the State or the Service Provider would be responsible for the cost of conveying the information from the Service Provider to the Centre. The Bill is silent on this and the Chair asked that it be held in abeyance until a political decision is taken. During the lunch break the Chair received a letter from four Directors-General informing him that an agreement had been reached whereby the Minister of Intelligence would be responsible for the National Intelligence Centre. The letter contains proposals in this regard and the drafter was instructed to give effect thereto.

The Chair informed the Committee that three bills had been referred to them. The first was the Judicial Matters Amendment Bill and 13 September 2002 was the deadline for comment. The Second Bill is the Insolvency 2^nd Amendment Bill and deadline for comment is 20 September 2002. The third is the Criminal Procedure Amendment Bill. The Chair was not sure if there would be enough time to process the third bill this year but the deadline for comment was 27 September 2002.

MINUTES
Mr Labuschagne, Legal Drafter from the Department of Justice and Constitutional Affairs, was present to assist the Committee in their discussion.

The Chair quickly went through the definitions that have not been covered yet.

'serious offence' - in item (iv) under a 'serious offence' it is described as one which may cause
substantial {and irreparable} harm to the international relations or economy of the Republic.

The Chair felt that this item related more to the gathering of intelligence and was already covered
in Clauses 14 and 15.

Mr Landers (ANC) agreed that it was covered in those Clauses.

The Chair also felt that (ii) should be listed as (i) and (i) should be listed as (ii). (ii) refers to acting in an organised fashion and the Chair felt that it should be (i).

Mr Labuschagne had no objection to these changes.

'organised fashion' - the definition was the same as in the Prevention of Organised Crime Act and the Chair said that it was fine.

The Chair said that it was important to note that there has been substantial changes to the definition of serious offence in that it now covers a syndicate.

Mr Mzizi (IFP) suggested that the definition of organised fashion be incorporated into the definition of serious offence.

Mr Labuschagne agreed with the suggestion because it was the only place that organised fashion was used.

The Chair also agreed with the suggestion. Looking at schedule one that lists the serious offences, the Chair commented that he did not like the order in which it was listed. He suggested that the first 5 stay the same. Thereafter the order should be as follows: 12 becomes 6, 11 becomes 7, 7 becomes 8, 8 becomes 9, 10 stays 10, 6 becomes 11, 9 becomes 12 and 13 stays 13.

Mr Jeffery (ANC) referred to item 9 that has a reference to provincial ordinances. He said that ordinances were on the way out and many have been replaced by legislation.

The Chair said that the reference to ordinance be deleted and that there just be a reference to legislation.

Mr Jeffery that child pornography was not listed as a serious offence.

The Chair said that it would be covered under the concept of syndicate.

Mr Jeffery replied that paedophilia was a better example because this was not a syndicate.

The Chair said that a pedophile can commit many crimes like rape and sodomy and all the crimes are not listed. He added that item 13 is a catch-all provision and the crime would fall under that item. If any agency in the future wanted a specific crime listed as a serious offence for the purposes of the Act then the Committee will do so. The Chair felt that the problems of the previous definition of serious offence is now one but that it still was very strong and covered many aspects.

CHAPTER 4 - EXECUTION OF DIRECTIONS AND ENTRY WARRANTS
Clause 24 - Execution of direction
The Chair referred to sub (3). It states:

[(2)] (3) [A member or other person] An authorised person who executes a direction or assists with the execution [of a direction] thereof may [take possession of and examine any postal article or telegram to which the direction applies, or, as the case may be, listen in to or make a recording of any communication] intercept, at any place in the Republic, any communication in the course of its occurrence or transmission to which the direction applies.

The Chair did not understand why the last line ends off with 'to which the direction applies.' He said that if the number is an MTN one then MTN will be approached for a tap. He was not opposed to the wording but wanted to know the rationale.

After going through sub paragraph (4) the Chair saw the rationale. Sub (4) relates to the interception of a postal article. The article could be anywhere in the country and therefore the wording in sub (3) would be needed.

The Committee was happy with the other provisions in Clause 24.

Clause 25 - Execution of entry warrant
Clause 25(2) states that if a person says that an article contains privileged information the person who carries out the direction must first call a judge to ask if the article can be removed to a place a safety. The Chair was not happy with this because already authority exists to have the article removed.

Mr Jeffery agreed that the Clause defeats the purpose of a direction because then any criminal would claim privilege.

Mr Labuschagne referred to a letter between attorney and client that could be the content of the article.

The Chair said that privileged information can be intercepted but it cannot be used in court and he wanted Clause 25(2) removed. He added that telephone calls between attorney and client are not excluded from being intercepted.

Adv Masutha (ANC) was concerned about the question of the admissibility of evidence.

Mr Jeffery replied that the courts should deal with the issues on a case by case basis.

The Chair again stated that the Clause must be deleted. It would also not apply to postal articles because the authorities would go to the post office to intercept the article and would not go to the persons home.

Clause 26 - Assistance [at execution of direction] by postal service provider and telecommunication service provider[s]
The Chair explained that Clause 26(1) provides the types of assistance that a postal or telecommunication service provider must provide. They must either assist in setting up he intercept or the signal must be routed to the interception centre.

Mr Jeffery asked if the Clause places an obligation of he service provider to plant the bug.

The Chair emphasised that no where in the Bill is this obligation placed on the service provider. He could not see how the service providers could read this into the Bill. It was clear that Clause 26(1)(b)(i) and (ii) was an either / or provision. If the service provider could route the signal to the centre their obligations have been met. If they cannot route the signal because of lack of equipment then they must assist the authorities in setting up the intercept. The Chair also emphasised that the bugging and the execution of a warrant is completely separate from the assistance that the service provider gives. The Chair thought that maybe a word other than 'assistance' must be used in 26(1)(b)(i) but if another word cannot be found the explanation he gave still stands. Also he felt that it would be better to make sub (ii) the first sub paragraph because this was the first obligation of the service provider. Only if they cannot route the signal them they should assist in the setting up of the interception. He concluded by saying that service providers will not be doing anything more or less than they are doing now.

Clause 26(2) envisages the same type of assistance in relation to archived or real time telecommunications.

Clause 27 - Assistance by decryption key holder
Clause 27(1)(b) contains a proviso that states: ' Provided that a telecommunication service provider is only responsible for decrypting any indirect communication encrypted by a customer if the facility for encryption was provided by the telecommunication service provider concerned.' The Chair felt that this proviso was superfluous because of the service provider does not have the key it cannot be handed over. He said that the proviso must be deleted.

At Clause 25(5)(b)(ii) the Chair wanted to know what the provision adds to the rest of the Clause. The Chair interpreted the Clause to mean that another decryption key holder is obliged to help a decryption key holder who is under a direction. The Chair said that the Clause must be removed because once there is an order against a decryption key holder then it would be up to that decryption key holder to get assistance if they cannot do the job.

The other sub Clauses were all fine.

Chapter 6 - INTERCEPTION CAPABILITY AND REMUNERATION
The Chair was not happy with this heading and said that the chapter should just be called 'Interception Capability'.

The Committee decided that the communicated information that must be stored, should be stored for a period of three years. The Chair commented that the DG of Communications had indicated that the period should for storage should be longer but for now it would be left at three years.

Clause 28(4) states the following:

'(4) Notwithstanding any other law, agreement or licence, a telecommunication service provider must, subject to section 44(1), at own cost acquire, whether by purchasing or leasing, the facilities and devices determined in a directive referred to in subsection (2)(a).'

The Chair wanted to know if the cost mentioned here includes the facilities that the service provider would need and the everything up to the monitoring centre. What the Chair wanted to know is if the Clause also dealt with the cost of the link from the service provider to the centre.

Mr Labuschagne said that the state would be responsible for the cost of the link. He said that the Committee had taken this decision.

The Chair did not agree with this comment. He said that Mr Crosby (intelligence) had said that the Bill was quiet on who would be responsible for the cost of the link.

The Chair wanted to know why the State should pay for the link.

Mr Labuschagne replied that the department of communications had said that the state must pay for the link. He reminded that the Chair had asked for international comparisons and that an Australia model was provided.

The Chair remembered that he was not happy with the Australian paper because it was only an investigation and not the legal position. He added that this was a very important issue and that a political decision needs to be taken. He ruled that the matter be left open for a while so that he and the members can think about it.

Mr Jeffery was not happy with the wording in Clause 28(7).

The Chair suggested that it should rather read: 'to whom, prior to the fixed date,
a telecommunication service licence has been issued under the Telecommunications Act.'

The Chair said that everything was fine in this Clause save for the issue of the cost of the link.

Clause 29 - Remuneration payable to postal service provider, telecommunication service provider and decryption key holder
The Chair did not like the word remuneration and said that another word should be used.

In Clause 29(1) the Chair pointed out that it does not take into account exempt service providers. He said that the Clause can be left as is for now but he wanted Mr Labuschagne to think about it.

Clause 29(3)(a) and (b) provides:

'(3) The remuneration payable to a postal service provider, telecommunication service provider or decryption key holder in terms of this section will only be:
(a) for direct costs incurred in respect of personnel and administration which are required for purposes of providing any of the forms of assistance contemplated in subsection (1)(a)(i); and
in the case of a telecommunication service provider, for the lease of telecommunication facilities, where applicable, by the telecommunication service provider concerned to the Police Service, Defence Force, Agency, Service, Directorate or prosecuting authority.'

The Chair said that sub (b) must be deleted because the service provider must pay for this. he added that Clause 28(5) also stated that the service provider bears the cost envisaged in sub (b).

Mr Jeffery added that whether the state or the service provider was responsible for the cost of the link would be relevant under this Clause.

The Chair instructed Mr Labuschagne to draft Clauses for both scenarios. One where the state pays and the other where the service provider pays.

Chapter 6 - Establishment of Interception Centres
The Chair referred to Clause 30(2) because the Minister must first consult with all the relevant Ministers and the service providers before issuing a directive on what equipment will be required by the state authorities. The Chair wanted to know why the consultation is necessary because the Minister already knows what equipment is needed as he already issued a directive for the service providers.

Mr Labuschagne replied that the service providers might have upgraded the equipment and that it was important that the equipment be compatible.

The Chair said that the Clause did no harm and it was fine.

In Clause 30(2) that date referred to therein, the Chair felt had to be linked to the directive issues in Clause 28(2)9b) and 7(b). He also wanted the 12 month period in Clause 30(2)(b) to be changed to six months so that the state and the service providers have the same time period to comply with the directive.

Clause 30(6) states:

'(6)The Minister and the relevant Ministers will jointly be responsible for any expenditure incidental to the—
(a) establishing, equipping, operating and maintaining of interception centres;
acquiring, installing and maintaining of connections between telecommunication systems and interception centres; and'

The Chair had a problem with the term jointly. He said that the idea was that there be one centre and that each agency would be responsible for the cost of routing the information to themselves. After further consideration he said that at the end of the day if the Clause says jointly responsible the different departments and agencies can sort things out for themselves.

Adv Masutha was concerned that the joint responsibility was not in line with the PFMA and that the set up envisaged by the Bill would create an accounting nightmare. He wanted one person to be responsible.

The Chair said that the Director General of Justice had made it clear that he did not want the responsibility of the administration of this Act.

Mr Jeffery said that it was not up to the Committee to decide what Minister pays for what and how much.

Mr Landers pointed out that Clause 30(6)(b) refers to the link that the Committee had not yet decided on.

The Chair said that he had not even noticed that, but sub (b) would only be included if it was decided that the state pays for the link.

Ms Chohan-Khota (ANC) said that Clause 30(1) was clear that the Minister of Justice has a role to play whether the DG likes it or not. She identified with the point made by Adv Masutha because one person must be responsible and politically accountable. She added that from the reading of the bill the Minister of Justice is that person.

Adv Masutha suggested that one option would be for the President to assign the responsible Minister. He also agreed with Ms Chohan-Khota that Clause 30(1) does point to the Minister of Justice.

The Chair disagreed with Mr Jeffery in that parliament could pronounce on who should be responsible for what but practically the Chair felt that it would be better if the Clause is left open ended and the various role players can sort things out amongst themselves. The Chair suggested that sub (6) be collapsed into Clause 31 and the reference to jointly be removed. He also instructed Mr Labuschagne to find out from Treasury if the provisions are in line with the PFMA especially in respect of the accounting officer.

Clause 30(7) refers to the Minister designating a centre as a national key point in terms of the National Key Points Act.

The Chair wanted to know what this Act was.

Mr Labuschagne did not know but said that the Department of Communications had wanted it in.

Mr Landers knew what it was and said that the Minister of Defence was responsible for securing places designated as key points. He had one concern namely that the Clause should oblige the Minister of Defence to declare the interception centres as key points rather than providing the discretion to.

The Chair asked Mr Labuschagne to check whether 'may' should be 'must' and also wanted a copy of the Key Points Act. The Chair indicated that the Independent Complaints Directorate should also be mentioned in a Clause whereby they can be an applicant in a matter but not part of the Centre. If the ICD then wishes to make use of the Centre they would pay for the service.

In Clause 32(4) provision is made for a deputy director of the Centre. The Chair said that the Clause must be deleted because a deputy is not needed. The aim is not to create a another bureaucracy.

After returning from Lunch the Chair advised that he had just received a letter from 4 DG's. They had agreed that the Minister of Intelligence would be responsible for the National Communications Centre and had come up with proposals. He handed the letter to Mr Labuschagne who was instructed to draft Clauses 31-35 in line with the proposals in the letter. He added that he has no idea why they refer to it as the National Communication Centre and that it should remain the National Interception Centre.

Clause 36
Ms Chohan-Khota asked why the requirement for security clearance contained in the original Bill is not in this version.

Mr Labuschagne replied that it was an oversight and it would be included.

Clause 36(6)(a) establishes an advisory Committee. The Chair felt that such a Committee is not need and the necessary amendments must be made. Also the Chair did not like the term 'Interception Fund'. He suggested that it be called the ' Assistance of Certain Service Providers Fund'. He said that the fund will now be called that until someone can think of a better name.

Chapter 7 - Duties of Telecommunication Service Provider and Customer
Clause 37 sets out the information that the telecommunication service provider must get and store when entering into a contract. Clause 38 applies to the sale of cell phones and sim cards.

The service provider is obliged to make a photocopy of the 'page' of the identification document that contains the photograph.

Ms Chohan-Khota said that the reference to page should be deleted because ID documents are changing and might not be in the current form.

The Chair referred to Clause 37(30). It says:

'(3) A telecommunication service provider referred to in subsection (1) must provide the Police Service, the Defence Force, the Agency, the Service, the Directorate or the National Director with such information regarding a customer, as may be required in writing by the relevant applicant or an authorised person who executes a direction or assists with the execution thereof, to perform the functions and exercise the powers authorised by law.'

The Chair said that what is wanted from the service provider is whether a person has a phone or not with that specific service provider. If the answer is yes then the telephone number is required. The Chair felt that there is a Clause lacking that states that an authorised person should be able to ask a service provider if a person has a contract and the corresponding number for the purpose of getting a directive to intercept the calls. The other information that the service provider has to provide in terms of sub Clause (3), the Chair felt was unnecessary.

Ms Chohan-Khota raised the problem of privacy and who exactly applies for the information from the service provider.

The Chair identified with this problem because the request is not done on affidavit or under oath. He said that an option would be to remove sub Clause (3) and the authorities could apply for the information in terms of Section 205 of the Criminal Procedure Act.

Mr Landers and Ms Chohan-Khota preferred that the bill provides for a mechanism that enables the authorities to get the required information.

The Chair said that the issue here was that first of all the phone number is needed but as the Clause stands all the other information can be accessed for anything. The Chair wanted to ensure that the information is only sought for the purpose of applying for a direction.

Mr Labuschagne asked why it would then be necessary for the service provider to keep all the other information required in the chapter.

The Chair replied that the information can be obtained by using section 205 of the CPA when investigating crime.

Mr Labuschagne felt that the other information would also be necessary because there could be ten persons with the same name. It would then be difficult to say what number must be used to apply for the direction.

The Chair replied that Mr Labuschagne must draft a provision that states that for the purposes of making an application for a direction in terns of the Act the service provider must provide the authorised person with the copy of the identification document and the telephone number. The Chair added that this would be enough information.

As a result of the above discussion the Chair said that Clause 37(4) could now be deleted.

Clause 38 applies to cellular telecommunications service providers. The obligations are the same as in Clause 37. The Chair instructed Mr Labuschagne to fix up Clause 38 in line with the discussion of Clause 37. The Chair wanted to make it clear that if MTN sold a batch of sim cards to CNA, MTN would get a copy of one ID document. When CNA sold a sim card it would get a copy of the ID document.

Clause 39 provides for the duties if a sim or cell phone is lost or stolen. The theft or loss must be reported to he police within a reasonable time.

Mr Labuschagne asked if such reports should not go to the Centre.

The Chair replied that it should not. The Police should keep the records. He instructed Mr Labuschagne to draft a Clause that would provide that the directives issued under Clause 29 be submitted to Parliament.

Chapter 8 - GENERAL PROHIBITIONS AND EXEMPTIONS
The Committee had to decide whether the following Clause had to be retained.

'{(3) No otherwise privileged communication intercepted, or archived or real-time call-related information obtained, under, or in contravention of, this Act shall loose its privileged character.}'

The Chair said that privileged information had been discussed earlier and the position was clear. He did not want the Clause to be included because the courts should decide whether the information is privileged.

Mr Labuschagne was asked to remove the reference to surreptitious interception in Clause 42 because the Chair could see no need for it. It would be okay to just refer to interception.

Clause 43 states that no person may manufacture, assemble, possess, sell, purchase or advertise any listed equipment except any authorised person or the National Director who possesses listed equipment for purposes of using it in the execution of an interception direction or in assisting with the execution thereof; or any person who manufactures, assembles, possesses, sells, purchases or advertises listed equipment under the authority of a certificate of exemption issued to him or her by the Minister under section 44.

Clause 44(1)b) states that The Minister may exempt any telecommunication service provider or any other person from one or all of the prohibited acts referred to in section 43(1).

The Chair was not happy with the blanket exemption that is made possible by the above Clauses. He said that the Bill provides the framework for interception and provides what equipment the state needs and what equipment the service provider needs. The Clause allows for the obtaining of all types of equipment for any reason. The equipment that could be obtained is outside the framework put in place by the Bill. The Chair felt that it created a loophole for someone who wants to act illegally. The Chair suggested the possibility of a certificate of exemption be looked into so that it is known who has what equipment.

Mr Labuschagne suggested that Clause 43(2)(a) be moved into Clause 44(1) so that an exemption certificate would be required.

The Chair said that this would be fine.

Clause 44(3) provides the criteria that the Minister should use to exempt small service providers. The Chair said that the Clause is not needed because the Minister can decide this on his own.

Mr Jeffery pointed out that the reference to the Minister withdrawing a certificate in Clause 44(5)(c)(i) should be deleted because the Minister has not yet issues the certificate to the service provider.

The Chair suggested that the Minister should be given the discretion to table the certificate in parliament also if parliament does not reject the certificate then it is deemed to be approved after two months.

Mr Labuschagne proposed a more cautious approach and suggested that Clause 13 be used in this instance. Clause 13 prevents a situation where regulations are tabled just before recess and then the time for consideration expires before parliament resumes.

The Chair asked Mr Labuschagne to draft something and then the Committee would consider it.

The Chair added that the certificate should be published in the government gazette and emphasised that the steps in Clause 5 first have to be followed before the certificate is issued.

Chapter 9 - CRIMINAL PROCEEDINGS, OFFENCES AND PENALTIES
The Committee decided that in Clause 45(2) the words 'written authority' should be used.

At Clause 45(3) the Chair said that the Clause has to be deleted because in Clause 9 the judge must store the information and the courts must decide if the information is admissible or not.

In Clause 46 the Chair pointed out that the reference to a Judge is incorrect because 'judge' is defined in the definition section. The Clause should refer to a Judge of the High Court.

In Clause 48(2) the Chair instructed Mr Labuschagne to check the presumption that the Clause creates to see if it is legal.

In Clause 49(1)(c) it stated that any other person to perform any of the acts referred to in
paragraph (a) or (b), for purposes of circumventing the provisions of this Act, is guilty of an
offence.

Mr Jeffery said that it would be difficult to prove that it is a persons intention to circumvent the act
and suggested that a presumption could be created over here.

The Chair referred to the first line of the Clause that states that any person who, intentionally and without just cause, in any manner does the listed acts is guilty of an offence. He told Mr Labuschagne to check if the concept of 'just cause' as it is used in the Clause is legal in terms of the case law. If it is legal then it would be better than having a presumption like Mr Jeffery suggested.

Clause 50 contains all the penalties for all the offences. The Chair liked the way in which the Clauses were drafted.

Mr Labuschagne advised that Clause 50(6) contains an innovation whereby a service provider is fined for each day that it continues to be not complying with the Act,.

The Chair liked this provision but wondered if it was legal but said that the court could decide. He also said that the Clause must be clear that it is the court who will impose the fine.

Clause 50(8)(b) allows for exemption from prosecution from offences in section 2 and 3 if the act was in good faith. The Chair said that this should be extended to all offences.

Mr Jeffery wanted it to be made clear that 'good faith' could be raised as a defence.

The Chair asked Mr Labuschagne to re-draft the provision on these principles.

Due to time constraints the meeting was adjourned.