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JUSTICE PORTFOLIO COMMITTEE
29 August 2001
INTERCEPTION AND MONITORING BILL: PUBLIC HEARINGS
Chairperson: Adv de Lange (ANC)
Interception and Monitoring Bill (B50-2001)
Interception and Monitoring Bill - 16 August 2001 (certified version; use if above not available)
National Directorate of Public Prosecutions submission
The Committee met to hear submissions from the National Directorate of Public Prosecutions, specifically the Directorate of Special Operations (Scorpions), and Telkom on the Interception and Monitoring Bill. The Directorate of Special Operations took cognisance of the public’s negative reaction to the Bill, but asserted that the Bill was vital to its continued effective functioning against organised crime, and were generally in favour of the Bill, subject to technical amendments. Telkom noted its current support for the various investigating agencies and their fight against organised crime, particularly regarding the interception and monitoring of voice communications, but expressed concern at the anticipated prohibitive cost and technical impossibility of monitoring all communications as proposed in the Bill.
The Chairperson opened the hearing by noting that this would be the first occasion where law enforcement agencies would be addressing the Committee on this Bill. He introduced Adv Leonard McCarthy, Investigating Director of the Scorpions, Mr Faiek Davids, Head of the Organised Crime Unit, and Adv Gerhard Nel, the legal advisor of the National Directorate of Public Prosecutions (NDPP).
Directorate of Special Operations (Scorpions)
Adv McCarthy noted that most people did not like the concept of Interception and Monitoring (IM), but that based on his experience, it was absolutely necessary for the effective investigation and prosecuting of organised crime. IM should ideally be implemented by sound and dispassionate officials exercising their discretion subject to judicial control. The heart of this exercise was reasonableness of action. He noted that in the USA, IM was equated with search procedures and the power was used sparingly. The Scorpions themselves had in the past year used IM only on five occasions and in the year 2000 only on six occasions. Its powers were limited by Section 28(1) of the National Prosecuting Authority Amendment Act of 2000, which required that reasonable grounds for IM must be demonstrated, such as suspicion of an offence and that IM was to be used as a last resort.
IM was essential for correlating data in relation to criminal activity in order to indicate time, location, disproving of alibis etc. He submitted that IM was a measured and reviewable infringement of the right to privacy. There were three sets of checks and balances:
- control at the very top i.e. himself, to consider the application,
- then a judge would apply his mind to the two pre-requisites i.e. that there were reasonable grounds for suspicion per affidavit and that the IM was the last resort,
- lastly, trial procedure, wherein the laws of procedure/evidence would exclude any unconstitutionally/ improperly obtained material.
On technical aspects, he called for clarity of what a ‘serious offence’ was in terms of the Bill.
Adv de Lange noted that ‘offence’ was badly drafted as to style and content and asked for an example of what offence might constitute ‘a compelling national interest’ or affect the ‘national economy’.
McCarthy suggested that this was a grey area and gave the possible examples of racketeering and money laundering.
Adv de Lange countered that this was covered with the Prevention of Organised Crime Act and Mr McCarthy agreed that guidance was needed here.
Adv de Lange noted that this should be addressed later. He raised two questions about Clause 2: did it apply to law enforcement agencies and would it not give private investigators the liberty to trample on people’s rights?
Mr McCarthy agreed that the section did allow for abuse by private investigators and should be redrafted. As regards law enforcement agencies, he replied that an agent would need a phone tap only as corroboration; his evidence would be the primary evidence and sufficient. Thus he submitted that law enforcement agencies were an exception to this section; it would not be necessary to make-believe that the agency had obtained consent for a tape recording.
Moving on to Clause 9, Mr McCarthy suggested a redraft in line with s 205 of the Criminal Procedure Act (CPA).
Adv de Lange concurred, giving the reason that there was a contradiction in the Bill, since IM of ongoing versus other isolated calls involved as much of an intrusion on privacy and there was no need for a distinction and different provisions regarding the two types.
Mr McCarthy submitted that Clause 11 was harsh but necessary, especially since cell phones were directly instrumental in the mechanisms of organised car theft and the narcotics trade. It was also important to make an offence of the tampering of cell phones in order to avoid being monitored.
Mr Davids continued the submission and submitted that the Bill was not unconstitutional. He provided a brief background to organised crime citing that empirical evidence showed an increase in criminal organisations and associated levels of crime over the last few years. It was thus the responsibility of government to take measures against organised crime directed at organised crime’s methods brought to light by research. He described SA’s organised crime systems as those in which there were several individuals or groups acting independently and many times without knowledge of the others, performing distinct functions, but all linked to a common leadership structure for direction and planning purposes. This networking with the syndicate leaders in conspiracy was not a permanent structure but a shifting matrix linked by telecommunications systems. The only method to catch the leadership, other than infiltration and informants, was to monitor their communications. Organised crime had the latest technology and was better equipped than the law enforcement agencies.
Adv de Lange asked about the limitation of rights in Clause 9 (Request for provision of call-related information).
McCarthy submitted that IM was recognised internationally as a method of investigating crime and that it was an acceptable limitation on the right to privacy.
Mr Nel (ANC) noted four problems: Schedule 1 of the CPA incorporated in the Bill was problematic and incomplete in that it referred to irrelevant crimes such as sodomy and bestiality but omitted other serious offences, that paragraphs 1-3 were not logical as these applied to ss (a), that ss (e) was contradictory to Schedule 1 in relation to murder and culpable homicide, and that the six-month jail term was unsatisfactory and cast the net too wide.
Adv de Lange noted that the wider it was, the more possibility there was for constitutional challenges.
Mr Nel (ANC) suggested that a unique schedule be drafted for this Bill in line with the specific objectives of the legislation, concentrating on organised and economic crime.
In answer to the Chair querying what these offences might be, Mr Nel said that he did not know, but had done research and found 365 references to cases where the ‘compelling national interest’ had been cited such as rights of children and sexual offences. He noted that the USA used this expression, but did not include there under all serious offences.
Dr Delport (DP) agreed that it was necessary to combat crime, but questioned whether it was actually effective to have these powers in order to achieve results. He suggested a parliamentary committee be established to monitor the results of the process. He asked if this would hamper the work of the agencies.
Mr McCarthy answered that there was a reporting mechanism, a civil and delictual liability possibility and a review mechanism to protect the public. Mr Davids added that a general reporting duty would not hamper the agency’s work. Statistics could be provided but no detailed information.
Adv de Lange asked who the line-function department was for this aspect, Justice or Intelligence.
Mr Davids distinguished between the administration and the application of the Bill. The law enforcement agencies would be responsible for the application of the Bill, though this was not spelt out in the act.
Mr Nel (ANC) continued that he wanted an opportunity to give a considered opinion later about what should be priority offences.
Adv de Lange referred to a judicial submission the previous day regarding USA and UK case law and which had suggested a general definition, that is, ‘violent crime’, but he was not sure if this was appropriate. The alternative of using Schedule 1 of the CPA had its problems too.
Mr Nel (ANC) suggested looking at the extensive list used by the Canadians.
Mr Grove (ANC) noted that it was not necessary to think of what sort of offence, merely to use the general provision when one came across a crime that ought to be included.
Mr McCarthy suggested that a definition that caused problems should be left out.
Mr Nel (ANC) raised the example of computer-related viruses that could debilitate the entire country economically and from a security angle.
Adv de Lange said that one needed to show what the crime was in order to debate its inclusion.
He summarised the debate thus far, that Clause 9 was to be changed to look like s205 of the CPA, Clause 2 was to be clarified to exempt law enforcement agencies and not to empower private investigators, that the serious offences definition was a problem, that Clause 11 should include all phone equipment, and that a further crime of tampering with phone devices was to be included. He queried the definition of ‘communication’ asking if this was in addition to phone calls. Did the Bill also want to include accessing internet web sites or publishing same, giving the example of child pornography sites or a site describing how to make bombs?
Mr Davids said monitoring of Internet communication for the purposes of this Bill related to emails.
Adv de Lange asked what equipment was needed for interception of Internet communication.
Mr Davids suggested they wait for the Internet service provider submissions the following day. Mr McCarthy added that IM of the Internet was possible and it was expedient to include this in the definition.
Mr Jeffery (ANC) suggested that computer crime was a developing area of law and that this Bill was not directly geared to address this issue, but rather a separate Bill was needed for this. He asked if there was an appeal provision regarding judicial orders under the Bill.
Adv De Lange noted that there was a definition of monitoring but not of interception in Clause 1 of the Bill. Mr Nel (ANC) pointed out that the definition of interception was in the Bill under Clause 5(2) and included ‘to take possession of’ and ‘examine’, ‘to listen to’, and ‘to record’.
In answer to the a query about what recourse an agency had if an application for a direction had been turned down by a judge, Adv McCarthy answered that a judge’s decision is reviewable in the context of the Bill and referred to the Hyundai judgment. He noted that the judge would nevertheless give his reasons for refusing an application to and the relevant agency would then have to work on those aspects so that a subsequent application was successful.
Adv de Lange found Clause 2(3) strange in that it gave private commercial enterprises the possibility of interception and monitoring, but prevented government from doing so.
Dr. Delport (DP) suggested that party political activities should not be included under the redrafted definition of organised crime.
Ms H Cronje (Asset Forfeiture Unit) submitted that a request by an agency was usually made to monitor the affairs of particular person, so the unilateral or reciprocal aspect of conventional communication definitions was not apposite. She also suggested that civil forfeiture be included in the offences of the Bill.
Adv de Lange asked for a written submission in this regard.
Ms Cassandra Gabriel, accompanied by Mr Karabo Motlana and Mr Francois Slabbert, submitted as an introduction that Telkom had always fully complied with the CPA and IM Prohibition Act in the past, but was concerned with the implications of the new Bill in two aspects: the incapacity to comply and the impact that such compliance might have on the telecommunications industry. Mr Motlana then proceeded to read the Telkom submission.
Adv de Lange noted that Mr Motlana had suggested that the intelligence agencies through the Bill wanted to expand on the current activities of IM, the current ambit being merely the receipt of a direction from the judicial authority and the placing of a specific device on a telephone line. He asked if this was so and the answer from the representative of the intelligence agencies was that they did not envisage any more than this.
Mr Motlana submitted that nevertheless the Bill wanted to go further to cover not only telephone calls, but also cell phones, data transmission, voice over internet, and noted that the provision of this facility would cost an estimated R500 million and the maintenance thereof of least 0,5% of total capital expenditure.
Adv de Lange queried the source of the figure and Mr Motlana said he could provide a breakdown later. He continued that the scope of the work implied by the Bill would infringe the economic activity of Telkom, as it was not possible to render all the services required technically or economically as required by the Bill. He submitted that the costs should be borne by the State.
Adv de Lange questioned whether a State-funded system would not be more intrusive and disruptive.
Mr Motlana said Telkom would be happy to comply by introducing hardware and software where possible, but the Bill neglected to address the cost of compliance.
Mr Jeffery (ANC) made the point that perhaps Telkom had misinterpreted the provision relating to how Telkom should ‘assist’ the authorities - it did not imply as Telkom had suggested that the employees of Telkom for example enter a customer’s premises. He also said that he did not understand that Telkom could not monitor all telecommunication. The function they were being asked to perform was of recording not interpretation. He also queried the basis of the costs given by Telkom. He suggested that it appeared that Telkom did not really support the Bill.
Adv Masutha believed that there was a moral obligation on Telkom to support the Bill and comply since it was Telkom’s network that facilitated organised crime. Regarding the cost issue he submitted that all the State asked for was access. This would not influence the management and service to the public provided by Telkom, and that where the State would have to play a role which necessitated creating new capacity, it would be reasonable to expect compensation.
Mr Motlana replied to the issue of the moral obligation by noting again that Telkom had always complied in the past and that they believed in the necessity for such compliance. The objections went rather to being compelled to comply and provide a scope of service that was not necessarily feasible. Telkom felt the issue of cost and feasibility was not addressed in the Bill and needed to alert everybody to this fact. He noted that he had attempted to raise these issues with certain interested parties and drafters but had had no response.
Mr Jeffery (ANC) also noted his concern that Telkom may have been asked to act beyond the scope of the present Act in the past.
Mr Motlana continued that it was an issue of establishing capacity involving the current cost of the network as also the network in the future. In the past, monitoring was also only of voice and now it was anticipated on all communications. Digital technology was predominantly foreign/imported and thus Telkom's position in being obliged to comply and operate within the law implied an economic consideration of the exorbitant costs involved.
Adv de Lange made two points. Did it make sense for all tax payers to pay for Telkom’s compliance rather than just the subscribers of Telkom? The duty to comply, whatever that entailed, was and would always be part of the requirements for the issue of a licence; why should this duty and related costs be now placed on the government? Adv de Lange queried who had paid for the setup of IM in the past.
Mr Magwanishe (ANC) queried Telkom’s losses due to crime and Ms Magazi (ANC) asked about public phones and how these would fit into Telkom’s future plans, and how the costs quoted by Telkom were arrived at.
Mr Motlana replied again that voice technology was easy to monitor, but that Telkom was not in a position to faciliate IM of all communication. In the future the service provider would merely be able to provide the network, not control what was on it. Regarding losses due to crime, Telkom could only quantify its losses regarding copper wire. Public phones were easy to monitor under the present system. Voice still formed the major part of communication, but the bulk of future traffic on the network would be non-voice. Monitoring would in some instances also degrade the service.
Adv de Lange noted that the volume of IM as stated by the Scorpions, some nine events in the last two years, could surely not be large enough to affect the system.
Mr Motlana noted that their specialist in this field was away in Paris and that Telkom would provide details later. He asked whether he could get some idea of how the investigating agencies viewed costs.
Adv de Lange asked for some idea of what sorts of other communication Telkom envisaged.
Mr Motlana referred to electronic funds transfer for instance from Cape Town to London using a variety of telecommunications links one of which might be a line rented from Telkom to access the internet where the data was transferred in bit streams and for which there was no equipment currently available to intercept or monitor.
Ms Gabriel explained further that copper line was easy to IM but digital or optic fibre could have a hundred calls all on one line, and each call broken down into individual bits of information (packets) which were ‘intelligent’ in that they could go separate pathways but all arrive and link up at the common destination. These could also be coded and decoded through a variety of mechanisms including modems.
Adv de Lange said that he did not understand.
Mr Slabbert suggested the example of speaking through a laptop, where the laptop could be connected to any telephone line, the information digitalised and broken up into packets that ended up in the same place on the other end where it was then decoded into voice again.
Adv de Lange said that he still did not understand.
A speaker from the agencies claimed that they were not asking Telkom to interpret the signals merely to extract them. He claimed that Telkom was rolling out a new generation network, the elements/nature of which were unknown to the Intelligence community. Telkom need not analyse the signals, but merely provide a facility at a switch at which IM could take place. It was not intended that fibre optic cables be monitored. The Intelligence community desired from Telkom only what they had been afforded by the cell phone service providers already i.e. an IM possibility at a switch.
Mr Motlana responded that this may be all that the intelligence community wants, but the Bill goes way beyond this, covering ‘all communications’.
Adv de Lange noted that any IM would first have to be approved by a judge who would be obliged at any rate to consider the feasibility of such IM with regard to technical practicality and costs.
Mr Motlana countered that a judge would still have to be able to fully understand the technical and other issues to make an informed judgment.
Adv de Lange replied that Mr Motlana was to take it from him that all the Bill purported to facilitate was what was described by the representative of the intelligence community above.
Mr Motlana nevertheless noted that he foresaw severe problems.
A speaker from the agencies noted the new technologies must be addressed and negotiated, and that perhaps the way in which the Bill was worded needed to be revised and made straightforward and simple in accordance with what the Intelligence community actually required within the law.
Ms. Magazi (ANC) noted that she felt that there was a resistance from Telkom and that the cell phone service providers had been more cooperative.
Adv Masutha (ANC) concurred and said that the same Minister that approved licenses would decide on the monitorability of the telephone lines. The Minister would be aware of the issues before making determinations and this was reasonable in light of the inherent right of the State to regulate.
Mr Motlana continued that the Intelligence community must acknowledge the past co-operation of Telkom. If new network architecture were developed, there was no certainty as to what it would look like and no blueprint therefore of which to inform the intelligence community.
Adv de Lange stated that it was the present system that was being addressed and that the future system requirements could not be spoken to.
Mr Motlana reiterated that the existing systems too would require further negotiation if all communications were to be required to be monitored.
Adv de Lange commented that getting a response from Telkom to a question was like pulling teeth.
Mr Motlana continued that it was not possible to monitor all elements of the system and Telkom was concerned about the implications of Clause 7(1) and its prescriptive unreasonableness.
Adv de Lange noted again that Telkom had been unable to explain the cost figure provided for the anticipated impact of the Bill.
Dr Delport (DP) asked whether Internet banking could be tapped.
Mr Motlana suggested that it was possible to establish that Internet banking was taking place but not to intercept the content thereof.
A speaker for the Intelligence community clarified that he only required a signal to be diverted to him and the onus lay on him to decode it. The form that it entered the network is what they required, and if it was encoded on the network, then also a decode to help retrieve it from the network was required.
Adv de Lange asked if Mr Motlana knew of any legal system where the cost of compliance was on the State.
Mr Motlana accepted that it was obviously the State’s role to regulate. He noted further that the quality and nature of the interception could drastically vary because the parameters of the Bill were so vast. He believed that voice and faxes were not a problem since they were low-grade information. However if criminals used higher-grade information then Telkom would not be able to comply in its proposed IM duty. And the scope of the Bill he said clearly was not limited to voice and fax. The reason why an objection was now being raised and not under the old legislation, was that low level compliance in the past was possible, but new technologies required new answers and raised new issues.
Adv de Lange asked whether the burden of compliance rested on the service provider.
Mr Motlana replied that there was no obligation on any African service provider that he knew of to render such a vast compliance for IM.
Adv de Lange noted that he was seriously disappointed with the responses from Telkom and hoped that Mr Motlana had the support of his directors in this regard.
Mr Motlana replied that the issues were very complex and it would be dishonest to say that they were not.
Adv de Lange commented that it would be seen who was dishonest or not. He declared that the matter would be left there.
Dr Delport (DP) asked whether, as had been intimated, Telkom had been asked to do more than was legally required of it by the present Act. Adv de Lange seconded this query.
Mr Motlana said that it was not possible to answer that question at this point.
Adv de Lange asked whether Telkom was prepared to afford the information on its proposed new technology to the intelligence community.
Mr Motlana said it was when it became certain what that was going to be.
Ms Gabriel stated for the record that Telkom supported the Bill in principle and the government initiative to challenge crime. The comments made here were meant to be positive. There was a need to consult with the drafters to obtain and ensure clarity in the Bill so as to avoid a field day for lawyers later on down the line. She had noticed that quite clearly what the intelligence community was saying in the hearing was quite different to what was contemplated by the vast scope of the Bill.
Adv de Lange said that the submissions of Telkom had indeed highlighted some problems with the Bill. He would require that Telkom put the facts and figures before the Committee if it wanted the Committee to consider Telkom’s points of view. He noted the need to seriously interrogate any submissions made to the Committee. He thanked all in attendance and adjourned the meeting until 2pm the following day.
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