Regulation of Interception of Communications and Provision of Communication-Related Information Bill

These were all agreed to.

Mr Mkhalipi (ANC) commented on the length of the clause. It is a daunting task to read this Bill and he found it hard to believe that the definitions clause was six pages long.

Clause 2 Prohibition of interception of communication,
The Chair asked if the person who plays a practical joke by intercepting a communication would be treated in the same way as the person who for no reason intercepts a communication, but does so intentionally.

Mr Labuschagne said that any interception which is not authorized by this Act would be an offence. He said that it would even be an offence if a man intercepts his wife's phone calls because he thinks that she is talking to a lover.

The Chair then asked if it would be an offence if that same man put a tape recorder under his wife's pillow for the same reason.

Mr Labuschagne said that in his mind that too would constitute an offence.

Mr Mkhalipi (ANC) asked if it would be illegal to place a bugging device in someone's private home.

Mr Labuschagne said that it would be, depending on who put it there and that it would also depend on if the device was put there in terms of the exceptions (Clauses 3 to 9) in the Bill, which render the interceptions lawful.

Mr Mkhalipi asked about informing a person that his communications are being monitored. If he were the unwitting target of some criminal activity and his communications needed to be intercepted to prevent the crime happening, would he then be informed of the interception. He also asked what the difference was between monitoring signals and monitoring communications.

Mr Labuschagne noted that he was not a technical person and so could not answer the question on the difference between monitoring signals and communications.

He continued that there is no obligation in the Bill to inform the "victim" of a possible interception. He said that Clause 42 prohibits disclosure and therefore a law enforcement officer would not be allowed to inform the target of an interception.

However Mr De Lange (Justice Department) pointed out that if the circumstances outlined by Mr Mkhalipi existed, the police may approach the victim directly for permission to make the interception. As the victim would be a party to the communication, it would be easier to obtain permission from that person than going through the whole rigmarole of getting an interception direction from a judge. So the simple answer is that in those circumstances the target of the interception is likely to be informed of the interception. It would not be the same for the criminal as it would be impractical to inform the criminal that his communications are being intercepted to obtain evidence against him.

Mr Mkhalipi asked if they had any ideas of the magnitude of the task involved in storing all the information as envisaged by this Bill in Clauses 39 and 40. He wanted to know the extent to which service providers would be burdened. They would need more office space and more advanced equipment.

Mr Labuschagne said that the service providers would have to get software which will enable them to store large amounts of information, and that he could not answer as to how much this software will cost.

Clause 3, all agreed to.

Clause 4 Interception of communication by party to communication:
The chair asked if people would not use this clause to try to escape liability by claiming that they had a right to intercept the communication because they were parties to it.

Mr Labuschagne said it would not because such persons would have to prove that they were parties to the communication according to the definition of "party" in the Bill.

Clauses 5 to 8 were agreed to.

Clause 9, Interception of communication authorized by certain other Acts:
This clause provides for telecommunications, in prison, to be intercepted. The Chair wanted to know under what circumstances this type of interception could take place.

Mr Labuschagne said that it could be done in terms of the Correctional Services Act 111 of 1998. An interception would be permitted if there was an indication that the prisoner was trying to arrange an offence. At the moment the police can intercept postal communications and that this Bill is extending that power. The regulations have to come to parliament so that Clause 9 is not used for petty reasons and to ensure that the prisoners' privacy is not unnecessarily infringed upon.

Clauses 10 to 13 were agreed to.

Clause 14 Provision of real-time or archived communication-related information upon authorisation by customer
This clause makes it illegal for telecommunication service providers to disclose any information- relating to communications made by the customer - to any person other than the customer, unless the customer authorises such disclosure in writing.

Mr Mkhalipi asked about text messages. Would it be illegal if he picked up someone's phone, which had text messages on it and sent the text messages to his phone. He also asked how this activity would be policed if illegal .

Mr Labuschagne said that he had never heard of anything like that, but that it would be an offence.

Mr Mkhalipe asked how they intended to prevent this from happening. The reason for this question was that he had given his son his old phone. His son, through tampering with the phone was then able to retrieve an old, deleted message from the old phone and send it to his new phone.

Mr Labuschagne said that that is illegal; any tampering with a phone to make it do something it could not normally do is illegal. He admitted that he did not know how this type of activity could be prevented. He was not sure if the Bill should address this problem or if the service providers should be addressing the problem through their technology.

Clause 15 was agreed to.

Clause 16
As there was a possible amendment to discuss with the Minister, this clause was skipped.

Mr Mkhalipe raised a technical issue regarding Clause 16. He wanted to know if the "designated judge" referred to would be acting part-time or if the judge would be taken from the bench.

Mr Labuschagne pointed out that the Bill does define "designated judge" in chapter 1. The judge would not be taken from the bench but would have to be a discharged or retired judge. This means that there would be no chance of the judge who is hearing the matter being the same as the judge who gave the interception direction.

Clause 17, Application for, and issuing of, real-time communication-related direction:
The Chair asked why information was considered to be real-time communication information for 90 days. He felt that 90 days was too long and that that information should become archived information at an earlier stage.

Mr Labuschagne said that the 90 day period was an indication from the service providers. The clause was thus agreed to.

Clauses 18 and 19 were agreed to.

Mr Mkhalipi asked why the Bill deviated from "designated judge" and in Clause 19(1), only referred to "a judge". Mr Labuschagne replied that the wording in Clause 19(1) follows the wording in Section 205 of the Criminal Procedure Act 51 of 1977 because Clause 19(1) serves the same purpose as Section 205.

Clause 20, Amendment or extension of existing direction
The Chair asked if Clause 20 also applied to oral directives.

Mr Labuschagne said that it did not because oral directives are only valid for 12 hours and thereafter the judge must give a written direction. It was also highly unlikely that there would be amendments to the oral direction during those 12 hours.

Clause 21 was agreed to.

Clause 22 Application for, and issuing of, entry warrant
The Chair asked when "entry" can take place in terms of this Bill because usually times are stipulated.

Mr Labuschagne said that entry can take place at any time because they did not want to limit the police. Entry on this basis would be done secretly and all the other usual requirements, which relate to search and seizure, have been done away with for the purposes of this Bill. For instance, the police official would not have to identify himself when making an entry under Clause 22.

Clause 23, Oral application for, and issuing of, direction, entry warrant, oral direction or oral entry warrant
The Chair said that there seems to be an expectation here that the service providers recognise the judge's voice. How else would they know that it is actually the "designated judge"?

Mr Labuschagne's response was that this would not be a problem because Clause 19(1) does not appear under the provision for oral directions.

Mr Mkhalipe asked if private investigators enjoyed the same exemptions, under the Bill, as the senior law officials.

Mr Labuschagne said that they do not, unless they have been exempted in terms of Clause 46.

Clauses 24 to 27 were agreed to.

Clause 28 Assistance by postal service provider and telecommunications service provider
Mr Mkhalipi said that in every aspect of public life, one wants to deal with people of integrity. He was concerned that a person's reputation would be tarnished if the public became aware that one's post had been tampered with. He was once again arguing for the target being made aware of the communication interception.

Mr Labuschagne replied that they could not make the target aware of the interception because then the target would make use of other means to pass, for example, incriminating information. He was not aware of any other country where the target is informed beforehand of the interception, because this would not serve the purpose of the interception. However, if the committee wanted a redraft, they would be willing to discuss it.

Mr Mkhalipi said that he understood Mr Labuschagne's point and he could see this from the national interest point of view. His concern was that while national interest was being protected, at the same time this Bill could be making some intrusions on business principles.

Clause 29 was agreed to.

Clause 30
As there was a possible amendment to discuss with the Minister, this clause was skipped.

Clause 31 was agreed to without discussion, although the Chair said that he was tempted to make a comment every time they discussed this clause. He said that he would restrain himself and perhaps comment on it later.

Clause 32 Establishment of interception centers
The Chair asked where these centers would be established.

Mr Labuschagne said he was under the impression that they would start in Pretoria because of the existing facilities there and that the rest would be established as the need arose.

Clauses 33 to 37 were agreed to.

Clause 38
Mr Labuschagne said that there were technical amendments which needed to be discussed with the Minister. He said that the purpose of Clause 38 was to assist small service providers. He did not know how much the annual fee which service providers have to make to the fund, would be.

Clause 39 was agreed to.

Clause 40
As there was a possible amendment to discuss with the Minister, this clause was skipped.

Clauses 41 to 43 were agreed to.

Clause 44 Listed Equipment

This clause empowers the Minister to stipulate what type of equipment is listed and this declaration would make the possession of such equipment illegal.

Clause 45 Prohibition on manufacture, possession and advertising of listed equipment
The Chair asked why there was a prohibition on advertising listed equipment.

Mr Labuschagne said that the prohibition exists because there is no purpose in advertising listed equipment because nobody can use listed equipment. It would be immoral to advertise listed equipment, but he added that he had no problem with changing the provision if that is what the committee wanted.

The Chair said that he thought it was overkill to include "advertising" in the clause, but that it could be left as is.

Mr Labuschagne said that Clause 46 still allowed one to apply to the Minister for exemption from this prohibition created in Clause 45.

Clauses 46 to 50 were agreed to.

Mr Labuschagne said that Clause 51(1)(viii) may be struck down and therefore may be an amendment which is later submitted. The rest of Clause 51 was agreed to.

Clause 52 and 53 were agreed to.

Clause 54 Unlawful acts in respect of telecommunications and other equipment
The Chair asked if it would be unlawful for him to modify his cellular phone so that he could, for example, have his wife's face on it or get radio stations on his phone.

Mr Labuschagne said that it would not be unlawful to get an ordinary upgrade on his phone, but if he went to operators who specifically changed the phone's software for illegal purposes, then it would be unlawful.

Clauses 55 to 63 were agreed to without discussion.