Regulation of Interception of Communication & Provision of Communication-related Information A/Bill: deliberations

JUSTICE AND CONSTITUTIONAL DEVELOPMENT COMMITTEE
23 June 2006
REGULATION OF INTERCEPTION OF COMMUNICATION AND PROVISION OF COMMUNICATION-RELATED INFORMATION AMENDMENT BILL: DELIBERATIONS

Chairperson: Ms F Chohan-Kota (ANC)

Relevant documents
Regulation of Interception of Communication and Provision of Communication-related Information Amendment Bill – 23 June draft
Cape Chamber of Commerce submission

SUMMARY
The Department of Justice briefed the Committee on the latest amendments effected to the Bill, which included broader definitions of ‘address’, ‘family member’ and ‘identification document’. Various alternative formulations of Section 40, 51 and 62 were presented for further discussion in the new term of Parliament. The Department would be in a better position to formulate concrete amendments on Sections 40 and 62 after its discussions with the Department of Home Affairs on the possible official documentation that South African citizens could use as proof of identity.

MINUTES
The Chair noted that the Committee had not yet gone through the Bill on a clause-by-clause basis because there were outstanding submissions that first needed to be considered. She stated that the Department would brief the Committee on the latest amendments to the Bill, which were proposed by the Committee at the previous meeting.

Mr L Bassett, Chief Director: Legislation in the Department, explained that the bold and double underline portions represented the most recent additions to the Bill. The single strike throughs that were not in bold represented what was previously discussed, and which the Committee instructed be deleted.

Ms I Botha, Department of Justice, conducted the briefing.

Amendment to section 1 of Act 70 of 2002
’address’
The Chair noted that an entirely new formulation of the definition of ‘address’ had been inserted. She requested the Department to draft the next document in such a manner that the old provisions were also included as well as possible options, to ensure ease of reference for Members.

Ms Botha agreed that a new definition had been inserted. It must be read with the proposed amendments to Section 40(3), dealt with the verification of certain particulars of the customer of the telecommunications service provider.

’family member’
Ms Botha informed the Committee that this definition now included an option to include a person who did not enjoy a particular biological or legal relationship with the person, but who nevertheless has a parental responsibility. This was proposed by Ms S Camerer (DA) in a previous meeting.

’identification document’
Ms Botha stated that this was also a new formulation. She wished to draw the Committee’s attention to some of the issues that arose from its deliberations on the term in previous meetings. It was clear that there were two very important principles at play: the first was the Committee’s intention to include as many documents as possible under the definition of an ‘identification document’, to ensure that as many people as possible would register with their telecommunications service provider. The second was to ensure that the provision that was adopted ensured certainty about the person’s identity. She stated that the Department considered this aspect as well.

At the previous meeting the definition was expanded to include a drivers license but she was concerned with that proposal, because the drivers licence contained only the person’s initial and not their full names. The Department discussed the matter with the Department of Home Affairs to identify the possible official documentation that persons could use. That Department indicated that there were some documents, such as a birth certificate and travel documentation referred to in the South African Passports and Travel Documentation Act, which does not contain a picture of the person. That was problematic. It was for that reason that the Department included the option currently reflected in the document, which deleted the references to the birth certificate and certain travel documents.

The matter will be discussed further during the Parliamentary recess with that government department, and the definition could even be expanded. It was only once the Department had had those discussions that it would be in a better position to discuss the ‘identification document’ provision further with the Committee.

’identity number’
Ms Botha informed the Committee that a new formulation of this term was now inserted because at some point the Committee raised a concern with the number to be recorded if a South African citizen produced his passport as proof of identification, because a passport contained two different numbers. The new definition now stipulated that an ‘identity number’ could be either the South African citizen’s number in his identification document or his passport number.

The new definition also stated that only a foreigner’s passport number must be recorded by the telecommunications service provider.

Ms Bassett explained that parts (a)(i)-(iii) of the definition of ‘identification document’ were taken directly from the principal Act. The Department had also inserted (a)(iv), which dealt with the Chair’s proposal that drivers licences be included, as well as (a)(v), which referred to the old black ID book issued before the new green bar coded ID document.

The Chair asked what exactly the ID card was.

Ms Botha replied that it referred to the new envisaged card that would soon be introduce, and which would replace the current green bar-coded ID book.

The Chair asked whether a temporary ID document was also accommodated.

Mr S Robbertse, Department, responded that if the person lost his ID card or damaged it he could then get a temporary card during the interim. He emphasised that the provision referred to the envisaged new card ID system.

Ms Botha added that the Department had researched the matter and found that the current definition of the term ‘identification document’ also included a temporary ID document. The Department did however, as indicated earlier, want to discuss the matter further with the Department of Home Affairs.

The Chair agreed.

Substitution of section 40 of Act 70 of 2002
Section 40(1)
Ms Botha informed the Committee that a minor amendment was effected to section 40(1).

Section 40(2)
The Department had effected the Committee’s proposed amendments to 40(2), which dealt with the relationship between the MSISDN and the SIM-card. Option 1 included the phrase “associated with the SIM-card”. That option was in line with the suggestions made by mobile telecommunications service providers. She explained that all the options required the telecommunications service provider to record the MSISDN number.

The Chair stated that the Committee would consider the various options.

Ms Botha stated that the third option on 40(2) now included the personal details to be recorded by the mobile telecommunications service provider, as they themselves proposed in their submissions. However the effect of the outcomes of the Department’s discussions with the Department of Home Affairs must be considered here as well. The provision also now required the mobile telecommunications service provider to record ‘at least one address’.

The Chair stated that the Committee would consider all the various options in greater detail, as the aim of the briefing was merely to provide an overview of the latest developments.

Ms Botha explained that 40(2)(c) in the third option clarified the kind of information that must be recorded from a South African citizen. The proposed 40(2)(d) outlined the information to be secured from a foreigner. Essentially the difference was that the option created an additional requirement for foreigners to provide information on their country of origin, as requested by SAPS’ second submission.

Ms Camerer stated that the proposed amendment did not seem to provide for international roaming, which was excluded from the previous draft of the Bill. She was of the view that if the foreigner made arrangements in their country of origin for international roaming, then they should be able to use their cellular phone in another country the minute they stepped off the plane. In any event their country of origin had all their details, and the South African telecommunications service provider could simply get it from them electronically. The mobile telecommunications service providers have indicated in the media that they were able to do so.

The Chair replied that if that was in fact possible, then the mobile telecommunications service providers must tell the Committee that directly, and must not “speak through the media”. The fact of the matter was that the Bill did not contain any provisions on international roaming precisely because the mobile telecommunications service providers have not given the Committee their position on the matter. She explained to Ms Camerer that the Bill was not preventing foreigners from using their cellular phones in South Africa, as it merely required them to first register with the South African mobile telecommunications service providers. It was the responsibility of the telecommunications service providers to provide those registration points at the country’s airports.

Ms Botha stated that the next option, on 40(2)(c), was split into two and was a summary of the previous options. Part (i) dealt with the information requirements for South African citizens, and part (ii) dealt with foreigners.

Section 40(3)
She stated that the proposed options on 40(3) outlined the kinds of documentation that could be supplied by the South African customer of foreigner in 40(2). The idea behind the various formulations was that it created scope for the inclusion of other kinds of documentation that could be adduced as proof of identification, should the Committee to decide.

The Chair stated that she approved of the idea, but instructed the Department to ensure that the provision was not open to too many different interpretations.

Ms Botha informed the Committee that the first formulation referred to ‘any other utility bill’, to broaden the list of examples of documents that could be produced for verification. The second option was in line with the Financial Intelligence Centre Act formulation.

Ms Camerer noted that the Cape chamber of Commerce submission asked how people whose shacks had been destroyed, by shack fires for example, would be able to satisfy the verification requirements. She asked whether they could adduce affidavits.

The Chair responded that the Bill would try and make provision for a temporary identification certificate. She disagreed with Ms Camerer that they be allowed to use affidavits, as that did not provide sufficient certainty and could easily be falsified.

Ms Botha explained that it was for that very reason that the definition of ‘address’ in the Bill allowed such persons to submit the address of a family member.

The Chair stated that this matter must be considered further to ensure people did not simply supply the address of a stranger. She proposed that the provision include ‘or any other document that to the reasonable satisfaction of the telecommunications service provider, could prove identification’.

Ms Botha stated that the fourth option on 40(3) provide a further alternative formulation, and focused on verification. The proposed 40(3)(a) did not refer to the specific particulars needed to identify the customer, but instead the aim of the paragraph was to verify their identity by referring to their identification document. She stated that the proposed 40(3)(b) in that option created two scenarios on the verification of the address, and built on the widening of the address requirement.

The Chair approved of the formulation of the option.

Section 40(4)
Ms Botha informed the Committee that the Department inserted the word ‘consultation’ at the end of 40(4)(c), as recommended by the Committee. The option retained the discretionary power of the Minister of Justice to prescribe security standards, but now required that to be done after consultation both with the Minister of Communications and with the telecommunications service providers.

The Chair agreed with the proposal.

Section 40(5) and (6)
Ms Botha explained that the Department experienced difficulty in formulating options for 40(5) prior to its discussions with the Department of Home Affairs on Section 40(2). She stated that 40(5) also impacted on the new formulations of Section 62. The Department did however proposed a formulation of 40(5) and 40(6) that provided for soft-blocking, where the seller of the cellular phone or SIM-card was required to notify the mobile telecommunications service providers of the transfer. The SIM-card would then be de-activated until the person receiving the cellular phone or SIM-card provided the information in Section 40(2) to the telecommunications service provider.

Section 40(7)
This provision referred to Section 39 that dealt with fixed line operators, but the last part of that section dealt with information to be supplied by a telecommunications service provider to SAPS. The first option suggested the insertion of two subsections to ensure the provision was applicable to both fixed line operators to mobile telecommunications service provider. We’ve added that into new

She stated that the second option duplicated what was currently reflected in Section 39 in order to avoid any confusion.

Section 40(8)
Ms Botha explained that the new 40(8) introduced a reference to ‘the employer or agent of the telecommunications service provider’, and required them to inform SAPS is they suspected a customer provided false information in terms of Section 40(3). The option introduced the ‘reasonable person’ standards introduced, which the courts would welcome because it was a well-defined legal test.

Amendment of section 51 of Act 70 of 2002
Ms Botha explained that Section 51 dealt with offences and penalties. The Department inserted a reference to the ‘employee or agent of the telecommunications service provider’ in 51(3C) of the Bill. The option on (3C) represented a completely new formulation to sanction non-compliance. It was essentially the same as the formulation of (3C) currently reflected in the Bill, but now required the person to report the false information within ’14 days’.

The Chair requested the Department to reconsider the 14 day time period. She proposed that it be reduced to 24 hours, because they must report it immediately.

Mr Botha agreed to consider the proposal.

Amendment of section 62 of Act 70 of 2002
Ms Botha stated that she would prefer not to go into this section in too much detail at this point, because the Department had not yet discussed 40(2) with the Department of Home Affairs, The changes to Section 62 reflected in the document related only to the formulation of 40(2) in the document at the moment.

The meeting was adjourned.