Regulation of Interception of Communications & Provision of Communication-Related Information A/B; Repeal of Black Administratio

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
2 June 2006
REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION-RELATED INFORMATION A/B; REPEAL OF BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAWS A/B: DELIBERATIONS

Chairperson: Ms F Chohan-Khota (ANC)

Documents handed out:
Regulation of Interception of Communications & Provision of Communication-related Information A/B [B9-2006]
Summary of Submissions on Regulation of Interception of Communications A/B
SA Police Services: Further comments on Regulation of Interception A/B (see Appendix)
Repeal of the Black Administration Act and Amendment of Certain Laws A/B [B11-2006]

SUMMARY
A brief discussion was held around the fact that the Regulation of Interception of Communication and Provision of Communication-Related Information Act 70 of 2002 had come into force in September 2005, except for section 62, which repealed the old legislation. Therefore the old and new Acts were effective concurrently. The Chairperson ruled that this did not affect the Bill now under consideration, as the old Act had not dealt with cellular communications.

The Department summarised and explained the comments received from MTN, Vodacom, Cell C, SA Police Services (SAPS) and Edcon during the public hearings, and took the Committee through each clause. No comment had been received on Clauses 1, 2(2)(4), 2(6), 2(7) and the short and long titles. Problematic areas which the Committee would need to debate included the information to be recorded, whether the algorithms of the Department of Home Affairs would be able to detect incorrect or fraudulent ID numbers, the twelve-month period allocated for all information to be recorded (failing which services would have to be suspended), and the argument that the Bill ran counter to the aims of promoting economic activity and access to communications. The Chairperson requested that the Department redraft clauses 2(1), 2(2), 2(2)(4) (if needed), 2(5) and 3 in line with the Committee’s discussions or agreements by the service providers, and asked that all clauses also be checked for consistency of wording and references to legislation. Additions suggested by the service providers, which should also be included in a re-draft, included provision for subscribers to switch to other service providers, service providers agreeing levels of remuneration for third-party registration points (to avoid undue competition), and the procedure to be followed if fraud was discovered. The redrafted Bill would be debated further the following week.

The Chairperson introduced the Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill [B11-2006]. The Department was responsible for ensuring that before the Act was repealed, provision was made in other legislation for traditional courts. The provisions caused constitutional problems. The Committee needed to get legal opinions, consult with the House of Traditional Leaders and approve the new legislation, which could not be done within the time frames prescribed. The Bill would be discussed the following Tuesday by the Committee.

MINUTES
Ms S Camerer (DA) raised the point that the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 had come into force in September 2005, except for sections 40 and 62. Section 62 of that Act repealed the old Act. It therefore appeared that the old and new Acts were effective concurrently, and certain appointments may still be made under the old Act.

The Chairperson commented that this was quite correct. She had asked Department to brief the Committee on which sections were still applicable, the rules of interpretation relating to the situation and how and in what circumstances the Acts applied. However, that was a separate issue to the present discussions. Insofar as the fixed line operators were concerned there was a dual dispensation. There had been difficulty with it’s implementation as this was on an incremental basis. The old Act was not repealed by the 2002 Act in entirety as it was deemed necessary to monitor fixed lines. There had been some difficulty in setting up the Interception Centre, and therefore the regulations necessary to create the synergy between the equipment of the service providers and the Interception Centre had not been finalised. However, the aim of the Amendment Bill was to regulate cellular communications. The old Act had not covered this area, being limited to fixed-line operators. Any concerns about validity would therefore not impinge upon cellular communications, which formed the basis of the Amendment Bill.

Ms Camerer felt that it would have been preferable for the Committee to be briefed on the situation before embarking on the current hearings.

The Chairperson reiterated that this was necessary, as the dual application of the Acts did not affect cellular communications.

Ms Camerer asked whether the Committee would be setting aside time for further oral hearings on the written representations received.

The Chairperson reminded Ms Camerer that there would not be sufficient time and no further oral submissions would be heard.

Department briefing and consideration of comments from mobile cellular operators during the public hearings

Ms H Botha (Principal State Law Advisor, Department of Justice and Constitutional Development) and Mr S Robbertse (Senior State Law Advisor, Department) had prepared a summary of the comments received in the public hearings on the Amendment Bill. Ms Botha went through the Amendment Bill clause by clause.

Long title
No comments had been received

Clause 1: amending Section 1 of Act 70, 2002 (definition of “family member”)
No comments had been received.

Clause 2(1): substituting Section 40 of Act 70, 2002
This sought to prohibit activation of a SIM-card until particulars were recorded. Cell C, Vodacom and MTN had all commented on what needed to be recorded, and all had suggested that the unique identification number – the Mobile Subscriber Integrated Service Digital Network Number (MSISDN) must be included, which would enable the SIM-card to be identified. They therefore suggested that particulars of the SIM-card did not need to be recorded. Each had slightly different suggestions on the wording. MTN had suggested the use of “MSISDN associated with the SIM-card number”.

In answer to a question from the Chairperson, Mr Robbertse clarified that the MSISDN number was the dial number (the 082 number) for the telephone. It was not necessary to mention both MSISDN number and SIM-card since the MSISDN number would enable an automatic identification. There was some question whether the International Mobile Equipment Identity (IMEI) number, the handset number, would also need to be recorded.

The Chairperson suggested that perhaps the clause should be amended so that it mentioned all the details of the cell phone, with the specifics to be included in subclause (2)

Clause 2(2)(a), proposed Section 40(2)(a):
Clause 2(2)(a) required a record of the MSISDN number. Ms Botha commented that it would be useful to link subclauses 2(1) and 2(2). Cell C, MTN and Vodacom had requested a reference, in subsection (2) to subsection (1). They had also suggested that in view of mobile number portability, there should be a requirement that if a subscriber wished to change network providers but keep the same number, the old telecommunication service provider (TSP) must, on request from the new TSP, provide the relevant information.

Clause 2(2)(b), proposed Section 40(2)(b):
This required a record of the IMEI number. Cell C, MTN and Vodacom suggested that there should be a separate registration process for handsets, and that the wording be amended to require the IMEI number of the “phone that is used”, as opposed to the current “phone that is to be used”. Their submission would mean that the IMEI number could only be captured once the phone was activated. The IMEI number was not always visible on the handset. The IMEI number could however be read when an active SIM-card was inserted.

The Chairperson asked whether the number would register before the phone was switched on or charged. Mr Robbertse confirmed that it would not. The Chairperson asked if this omission would address the problems. The legislation wished to ensure that when a person purchased a handset, all details would be recorded. The service providers wanted to record some details only on purchase, stating that the activation would ensure that the rest were relayed automatically. This assumed that two different information storage systems would have to be used, and that information would be inputted at different times. If a phone that was not yet activated was found at the scene of a crime, there would be no way of checking the full profile of the owner.

Ms Camerer believed that a cell phone was not functioning as a cell phone until activated. Prior to that it was merely an object.

Mr W du Plooy (SAPS) confirmed that SAPS would prefer to have the IMEIs prior to or during the process of tracing the cell phone. There were many cell phones that were presently unable to be traced back.

The Chairperson confirmed that this was her point exactly. There could well be quite a delay between the point of purchase and the time of activation.

Ms Camerer pointed out that the Bill was speaking of interception as well as monitoring.

The Chairperson replied that the Bill was aimed at trying to prevent crime and therefore the monitoring process was equally important.

Mr Robbertse (Department) confirmed that Department would investigate this further and communicate with service providers.

Clause 2(2)(c):
This clause as worded presently required full names, ID numbers and residential, business and postal addresses of the person requesting that a SIM-card be activated. Although some had suggested that only first and last names should be recorded, it had now been agreed by all service providers that full names should be recorded. The service providers were concerned about the number of characters required to capture all the information. Cell C, MTN and Edcon had suggested that only two addresses should be required. Vodacom had suggested, in regard to documentation to be provided, that an ID or another form of acceptable identification be given. Ms Botha stated that irrespective of what the Committee finally decided should be the requirements, the clause would require re-drafting. It would be possible to use the words “if applicable”.

The Chairperson agreed, believing that the drafters should cast the net quite widely. The Committee would be unlikely to move away from requiring all names, but could see the point that requiring three addresses in all cases, particularly in rural areas, would be problematic.

Ms Camerer commented that the Committee had not yet considered the point finally and she would not like the Chairperson to speak for her in commenting on what may be decided by the Committee. Ms Camerer referred to the public hearings, when all companies agreed that their systems could not cope with the requirements as worded, that they may be able to inject resources into upgrading the systems, but that they would then not be able to complete by the deadline. These were cogent arguments, on which she had not made up her mind.

The Chairperson commented that she was not attempting to speak for all committee members, but in view of the intentions of the Bill she did not wish to give false hopes to the service providers that their arguments would override the intention when drafting the Bill. She believed that provisions such as this would merely open loopholes, which the Committee could not possibly allow. She felt it was appropriate to discuss the reasons under the time clauses rather than at this point.

Clause 2(3) of the Bill, proposed Section 40(3)
This would require the telecommunication service provider to verify the identity of the person, and require him to submit documentation. Cell C, Vodacom and Edcon had suggested that subparagraph (b), requiring documentation, be deleted, as it was not a requirement in the current Act, introduced a paper-based element, and would be difficult to verify, partially because of the lack of proof of address for customers in rural areas, and partially because people moved. Edcon had further suggested that there must be clear guidelines laid down as to what was a valid ID and address. Ms Botha mentioned that one of the points raised during the public hearings was the situation where the operator punched in a wrong number. She stated that all operators already verified the IDs of contract customers. The Department of Home Affairs had an algorithm that would indicate incorrect sequences of numbers, or missing digits.

The Chairperson raised the point that although the algorithm would pick up incorrect digits, it could not possibly pick up whether someone had typed in a 9 instead of an 8.

Mr Du Plooy (SAPS) pointed out that there was a corollary already in the financial services sector, and that banks could verify IDs of contract customers, although they could not verify that the person holding the ID was the owner of it.

The Chairperson pointed out that this did not solve the problem. It would be impossible to verify a person in possession of a fraudulent ID. Even the photograph and address requirements were not watertight. It would be impossible, in her view, to obtain a watertight system, although she would be interested to hear if this was not so. However, even if the numbers could be confirmed, the addresses could not.

Ms Botha indicated that Edcon had requested clear guidelines as to what was the proper verification procedure and what documents could be accepted

The Chairperson agreed that the current style of drafting was loose, but if it were reworded to the effect of “whichever address is relevant” it might be possible then to regulate what kinds of documents were acceptable. She suggested that the Department check the wording of the FICA legislation. She would prefer to see a long list of acceptable documents rather than have any possibility of a loose interpretation.

Ms Botha commented that Edcon had also asked what constituted a valid ID, but this was already defined in the Act so could not be changed.

Clause 2(2)(4): Proposed section 40(4)
This dealt with privacy and protection of information. None of the companies had commented.

The Chairperson asked if “persons specifically designated” was defined anywhere in the Act, or if any lists in the Act were closed lists. The current wording seemed to suggest that regulations may need to be drafted. She warned that there should be consistency in drafting. She suggested that perhaps the words “designated in terms of this Act should be used.

Ms Botha responded that this had been discussed with the service providers. This section was not about who may share information, but was intended to limit accessibility of processing the information. She would check whether it was defined, or needed to be.

The Chairperson asked Ms Botha also to check how the section would be enforced. It might be that systems were already in place, but it should be possible to enforce compliance.

Clause 2(5): Proposed section 40(5)
This section related to the transfer of SIM-cards, other than to family members, prescribing the information to be captured. The comments of the service providers were on similar lines to those made for Clause 2(2), in regard to MSISDN and IMEI numbers, for the same reasons. The second point raised related to who should bear responsibility for the registration of information, and Cell C had suggested that this obligation should be firmly on the transferor, with no hybrid paper/electronic processes. The question had now been raised whether both parties should not appear together. All service providers would be comfortable with this.

The Chairperson agreed that there would be major loophole unless both had the obligation and requested the Department to redraft this section accordingly. She also commented that exactly the same information to be recorded should appear in this section as had appeared in section 2(2). There must be consistency of references.

Clause 2(6): Proposed section 40(6)
This related to updating of information by service providers. No comments were received.

Clause 2(7): Proposed section 40(7)
This related to updating by a mobile cellular service. No comments were received.

Clause 3: Amendment of section 51
This clause dealt with offences and penalties. No comments were received. However, Ms Botha stated that consistency references might need to be checked, depending on the decisions in regard to earlier clauses.

Clause 4: Amendment of section 62
This clause dealt with details of historical owners and changes. All references to the information recorded would need to be checked for consistency.

The Chairperson again commented that it was better to have a wordier piece of legislation, specifying everything again, than to have no clarity.

Subclause 4(c) dealt with the time period for recordal of information, failing which the service should not continue All service providers stated that the majority of subscribers were prepaid, many resided in rural areas, and they would be required to register thousands of customers per hour to comply. Cell C had requested that the Bill be amended to read “a defined period… as agreed with the Portfolio Committee”. Although their registration solution could be ready by 30 June the registration points would not. MTN had asked for an extension. , Vodacom and Edcon had asked for an extension to 36 months. Law enforcement agencies supported the twelve-month period, saying that the use of cell phones in commission of serious crimes had increased.

Ms Botha stated that this was a matter to be discussed by the Committee, as already raised earlier in the meeting.

Clause 5: Short title and commencement
No comment had been received.

Other comments: Some other comments had been received, not relating to specific sections. Cell C had requested that there be a provision that where TSPs used third parties as registration officers, standard levels of remuneration be fixed by the industry to avoid undue competition. Edcon had requested clarity on the process to be followed if fraudulent activity was discovered.

The Chairperson commented that the issue raised by Edcon would be covered by the common law.

Mr Robbertse confirmed that any person giving false information would be committing fraud, and a false ID would be regarded as “information”

The Chairperson asked whether an obligation should be specifically inserted in the Act that a person discovering or suspecting fraud should report it.

Ms Botha pointed out that the verification process would not permit the registration to go through if there was false information.

The Chairperson still believed the situation needed to be clarified, and the duty to report spelt out. She asked that the two provisions requested be incorporated in the next draft for discussion.

Ms Camerer stated that many of the submissions had suggested that if the Bill remained in its current form so that the service providers could not meet their obligations, this would force them to suspend services, which would run counter to ASGISA imperatives, and undermine the Minister of Communication’s goals. She believed it would be appropriate to call for the views of the ministerial committees. The DA remained concerned to assist law enforcement, but would not wish to undermine economic development.

The Chairperson indicated that the Bill had already been through Cabinet so that Ms Camerer’s fears about the Departments appeared unfounded. She did not believe the Committee had the time to protract the deliberations. She was not convinced by the arguments presented. Crime was the major issue harming the economy, and this Bill could not permit communities to be hijacked when very serious crimes were committed. Members should not sit on the fence, but should adopt a robust approach.

Ms Camerer confirmed that the DA was very much in favour of law enforcement prevailing but still hoped to get comment.

The Chairperson indicated that Ms Camerer could obtain information herself, if she felt this was necessary. The Committee would not do so.

Introduction by the Chairperson on the Repeal of the Black Administration Act and Amendment of Certain Law A/B
The Chairperson reported that the Committee would be considering this Bill on Tuesday 6 June. The Bill needed to be referred to the NCOP, which would rise on 23 June. It had been tabled for the first time the previous day and was concerned with technical matters. It was more urgent than Bill 9-2006.

Briefly, when it was agreed to repeal the Black Administration Act, a deadline for repeal was named. The repeal would affect various government departments, provinces and municipalities. The DEPARTMENT’s main area of concern here was the traditional courts, and DEPARTMENT was to initiate a law allowing the traditional courts to continue under the auspices of other legislation, which was still to be tabled. A Bill had been drafted, which essentially lifted the provisions almost unaltered from the Black Administration Act. However it was found that these sections were in many respects unconstitutional. For instance, a person of African descent committing an offence, such as a driving offence, could find himself under the jurisdiction of the traditional court, whereas a person in exactly the same circumstances who was not of African descent would not fall under their jurisdiction. This therefore made race a qualifying issue.

The Committee was required to consult with the House of Traditional Leaders, who would need to consider the matter, as they would have a lessened jurisdiction than under the Black Administration Act. It was still necessary to consult with them and get legal opinions. The deadline date could not be met, and so this Bill sought to extend the date – which would still need to be considered and fixed. She asked members to read and consider the Bill in preparation for the meeting on Tuesday.

The meeting was adjourned.

APPENDIX

The Chairperson

Justice and Constitutional Development Portfolio Committee

REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION - RELATED INFORMATION AMENDMENT BILL

[1.] Further to the inputs made on behalf of the LEAs the SAPS have the following comments:

[1.1] The proposal that details of the MSISDN number instead of the details of the

SIMCARD be captured, is accepted.

[1.2] The SAPS however requests that details of HANDSETS (IMEI) also be captured and that the registration of handsets be retained in the BILL. (When a handset is found at a crime scene it will be a point of departure to locate the rightful owner)

[1.3] The SAPS requires the FULL NAMES, ID NUMBER, and in the case of foreigners, Country of Origin, a passport number and date of birth in respect of persons who make use of cellular services. We also require a RELEVANT ADDRESS. (Except a postal address)