Regulation of Interception of Communications & Provision of Communication- Related Information A/Bill [B9- 2006]: briefing on La

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
2 August 2006
REGULATION AND INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION- RELATED INFORMATION AMENDMENT BILL [B9- 2006]: BRIEFING ON LATEST DRAFT

Chairperson: Ms F Chohan-Kota (ANC)

Documents handed out:
Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill [B9-2006]
Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill (Working Draft as of 2 August 2006) - part one
Regulation of Interception of Communications and Provision of Communication-Related Information Amendment (Working Draft as of 2 August 2006) - part two

SUMMARY
The Committee planned to meet every day until Friday 11 August and would deal with the Regulation of Interception of Communication and Provision of Communication Related Information Amendment Bill and the Sexual Offences Bill simultaneously

The Committee was briefed on the latest working draft of the Regulation of Interception of Communication and Provision of Communication Related Information Amendment Bill. It dealt with Clauses 1 and 2 and the Committee worked through the various options available in each clause. Some of the preliminary decisions made by the Committee were that people would not be able use birth certificates when buying cellular phones because they had no photograph and children would not be able to purchase phones on their own but would have to go to the retail outlets with their parents. The Committee decided that it would list a number of documents that could be used to verify an address once it had decided which option to exercise. Importantly, the Committee decided that at a minimum there should be verification of an individual's identity against a photograph.

MINUTES

Chairperson’s introduction

The Chairperson explained that the Committee would meet every day until Friday 11 August. It would deal with the Regulation of Interception of Communication and Provision of Communication Related Information Amendment Bill (hereafter the Bill) and the Sexual Offences Bill simultaneously. It would proceed with the Sexual Offences Bill after a briefing from the Deputy Minister of Justice and Constitutional Development next week [Monday 7 August]. The purpose of the current meeting was to finalise the finer details of the various options for the clauses of the Bill. The Committee would still have an opportunity to deliberate on the options next week.

Briefing on amendment options and discussion

Mr L Basset, Legal Drafter (Department of Justice and Constitutional Development), Ms I Botha (State Law Advisor) and Mr S Robbertse (Senior State Law Advisor) attended the meeting. Mr Robbertse took the Committee through the Bill.

Clause 1 Amendment of section 1 of Act 70 of 2002

"activate"
Mr Robbertse said that the definition was important for the purposes of the proposed section 40(1)(a). This section provided that a telecommunication services provider should not activate a SIM-card on its telecommunication system unless the particulars of the SIM-card or cellular phone were recorded and stored in the manner provided for in subsection (2).

Mr J Jeffrey (ANC) wondered if the definition was necessary. Could the word mean anything else? He asked the drafters to motivate the need for the definition.

Mr Robbertse replied that the definition had been proposed by the Committee. The word "activate" simply meant to switch on.

"address"
Mr Robbertse said that the proposed section 40(2) required telecommunications service providers to keep certain information and this included the postal address of the person who had requested that a SIM card should be activated or that a cellular phone should be allowed to be used with a SIM card. There were two options for the definition. The second option included "any area in a rural area, including that of a school, church or retail store, where a person is well known". Option (2) of the definition focussed more on residential addresses.

Mr Jeffrey said that the definition might present some problems. What would happen should a person who lived in Rondebosch produce the address of a Pick ‘n Pay shop as his or her address? There could also be problems with defining a rural area. The Department of Home Affairs (DHA) wanted traditional leaders and councillors to verify the addresses of people.

The Chairperson said she was not too worried about informal areas because some of them were easily identifiable. The problem lay with people who were living on farms with no designated address. One should avoid a definition that was too wide.

"family"
Mr Robbertse took the Committee through the definition. Paragraph (c) of the definition had two options. The first defined a family member as "a person who is not related to another person as contemplated in paragraph (a), but who has a relationship of responsibility towards such other person". Option (2) defined a family member as "a person who is not related to another person as contemplated in paragraph (a), but who exercises parental responsibility over such other person".

The Chairperson thought that there was an African principle that said that people who had the same surname were related. Mr Robbertse said that no such principle existed.

"identification document"
Mr Robbertse said that the proposed section 43 required the service provider to establish the identity of a person with reference to his identity document. Paragraph (c) of the definition defined an identification document in relation to a person who was not a South African citizen or was not permanently resident in the Republic. Option (1) under paragraph (c) defined an identification document as "a passport as contemplated in the Immigration Act, 2002".

Mr Basset felt that the definition should be broad to include various official documents so as not to exclude many people from getting cellular phones. No identity cards had yet been issued.

Mr Robbertse said that the DHA had said that the only valid identify document was the green bar-coded identity document. The old identity document referred to in paragraph (v) of the definition was no longer regarded as a valid identification document. The DHA was requested to indicate its views on what documents could be used to identify foreigners. There were various documents or certificates that were issued to asylum seekers but the passport was regarded as the primary document to identify foreigners.

Mr S Swart (ACDP) asked how the Bill would address problems that would be experienced by people under the age of 16. A Member of the Portfolio Committee on Home Affairs had once given an example of her son aged 17. The son had to wait for three years to get an identity document. He asked if a parent would be able to assist their children to obtain a cellular phone.

The Chairperson said that one could not use a birth certificate when buying a phone because it had no photograph. One could use the clause that allowed a person to transfer a phone or SIM card to a family member. Children would not be able to purchase phones on their own but would have to go to the shops with their parents.

Mr Jeffrey said that the definition was a bit clumsy. The intention was to include as much as was possible. The Identification Act had come into effect but the card system had not been implemented. He wondered how that Act defined an identification document. Could one simply refer, in this Bill, to an identification document as defined in that Act? The identification issue was the most crucial and the address issue could be easily circumvented.

The Chairperson was tempted to agree with Mr Jeffrey. In some countries the only document that was allowed was the identification document. The service providers were willing to accept other documents. The driver's licence card did not have the full names of the licence holder.

Mr Robbertse said that the DHA was in the process of implementing the card system but it would take a number of years before the process was finalised. Option (2) defined the term as "a valid/unexpired identity document issued to a refugee in terms of section 30 of the Refugees Act, 1999". A person who had applied for refugee status would normally be granted a temporary asylum permit and then given permanent asylum seeker status should he/she meet the criteria. The person could apply for an identity document once granted permanent asylum status. Telecommunication service providers would be allowed to use such a document for verification purposes. There were other documents issued to asylum seekers that had official reference numbers. Such documents were not included in the Bill because the South African Police Services (SAPS) had indicated that the documents could easily be forged and were available for sale on the streets.

Ms Botha said that a lot of asylum seekers came into the country without passports.

"identity number"

Mr Robbertse said that the Bill required service providers to record the identity numbers of people who requested a telecommunication service. There was also an option to deal with asylum seekers.

Ms Botha said that the word "valid" as used in paragraph (c)(iii) of the definition of identification number might have different meanings. A document could be valid either because it had not expired or because it was not fraudulent.

Mr Robbertse said that the document issued to asylum seekers was valid only for two years.

Mr Jeffrey said that an expired passport was not a valid document.

The Chairperson said that what was valid to one Department might not be valid for the next Department.

Mr Jeffrey said that a document issued in terms of the Act could not be fraudulent.

Clause 2 Subsection 1 of section 40 of Act 70 of 2002
Mr Robbertse said there were two options to this clause. The proposed section 40(1) would place an obligation on a telecommunication service provider not to allow the activation of a SIM card or a cellular phone unless there had been compliance with subsection (2).

The Chairperson noted that the only difference between the options was that the words “the particulars of the SIM card or cellular phone are recorded and stored in the manner provided for in” had been deleted. She asked if the deletion of the words made any difference.

Ms Botha replied that there were some uncertainties in respect of what was intended in section 40(1). Was it the particulars of the SIM card or the phone that had to be stored? Option (2) would place an obligation to store all particulars.

Mr Robbertse said that the provision placed an obligation on the service provider before it could activate a SIM card or a cellular phone on its telecommunication system. It would have to comply with subsection (2).

The Chairperson could not see much of a difference between the options.

Mr Robbertse said that sub-clause (2) spelt out the duties of the telecommunication service provider.

The Chairperson understood that the Mobile Subscriber Integrated Service Digital Number (MSISDN) could be shared between two SIM cards. She thought that it had been agreed that two SIM cards could not have the same MSISD number.

Mr Robbertse agreed that it was possible to have a number of SIM cards with the same MSISD number. One could switch from one telecommunication service provider to another and the new service provider would have to place the MSISD number on its database.

The Chairperson was under the impression that the MSISD number was specific to a SIM card.

Mr Robbertse agreed. This was one of the reasons for requiring that the SIM card number should be stored.

The Chairperson said that the drafting team should check how other countries dealt with the matter. There was a potential for fraud.

Mr Jeffrey said that a person could have more than one SIM card at the same time. He asked if a person's old SIM card would remain valid should a person migrate to another service provider.

Mr Robbertse said there were two options. One could require that the initials and surname/ first name, further initials, if necessary, and surname should be stored. In the case of a person who was not a South African citizen or not lawfully or permanently resident in the country, there was a requirement that the country where the passport was issued or the country of origin and date of birth should be recorded.

Mr Jeffrey said that the information was required in order to be able to trace a person. He wondered if requiring the country of origin would help trace the person. What was required was the country in which the passport was issued.

Mr Robbertse said that section 40(3) dealt with the verification of the identify of the person. Documents that could be used to verify a person's addresses included a letterhead in the case of a juristic person, municipal rates and taxes account and any other utility bill.

Mr Basset said that section 40(3)(b)(i) of the last option referred back to the paragraph (I) and (ii) of the definition of "address". Section 40(3)(b)(ii) referred to subparagraphs (iii) and (iv) of the definition of "address".

The Chairperson said that it was important to differentiate between the addresses. Many countries had a separate clause for juristic persons. Some countries used "end-user" as opposed to "customer". There was some merit in using "end-user" because one could have a person in a company buying phones for employees. The question would be whether the telecommunications service provider would have to store the details of the end-user or the company. There could be problems where the company just buys phones and gives them to its employees without knowing who was using which phone.

Mr Basset agreed that companies could buy phones and give them to employees without recording the details of phones given to each employee.

The Chairperson wondered if the solution would not be to register all persons. One might also require that the person who buys the cellular phones should furnish his/her identity document.

Mr Jeffrey said that it might be better to require the company to keep proper records of all phones given to employees. The list of documents that could be used to verify addresses was not closed. Utility bills were included as some of the documents that could be used.

The Chairperson said that the Committee could list a number of documents that could be used once it had decided which option to go with. One could not consider the issue of letterheads at this stage. There should be verification of the individual's identity against the photograph. She wondered where this was addressed in the Bill.

Mr Robbertse replied that the issue of verification against the person's photograph was dealt with in the last option.

The Chairperson asked if the last option referred to the identity number. The identify number should be added in the last option. It should be made clear that the affidavit referred to was not the affidavit by the person requesting that a telecommunication service be provided but the person in control of the address. A customer might come with an affidavit and say that he had no address.

Mr Basset replied the provision required the telecommunication service provider to verify the identity and address of the deponent.

The Chairperson said that the deponent could refer to anyone.

Mr Roberts said that section 40(4) dealt with security issues around the acquisition, storage and accessibility of information.

Mr Basset said that the introduced Bill provided that "a telecommunication service provider must ensure that the process and storage facility referred to in subsection (2) are secure and only accessible to specific persons nominated by a telecommunication service provider". The options to this clause dealt with the criteria to be determined by the Minister of Justice and Constitutional Development. Option (2) provided that the Minister should determine the criteria after consultation with the Cabinet Member responsible for Communications. Option (3) required that the Minister should determine the criteria after consultation with the Minister responsible for Communications and the telecommunications service providers.

The Chairperson said people would often raise the security of the storage of the information as a defence.

Mr Roberts said that section 40(5) regulated the disposal of a cellular phone or SIM card to another person other than a family member. One option placed an obligation on the person disposing of the phone or card to furnish certain information to a telecommunication service provider. A second option placed the obligation on both the person disposing and the one receiving the phone or card.

Mr Roberts said that this dealt with the updating of information received in terms of the proposed subsection (5). There was an option that would empower service providers to de-activate a SIM card until such time that the information of the person who was to receive the cellular phone or SIM card was recorded and stored in accordance with subsection (2).

Mr Basset said that there was a feeling that both persons should avail themselves for the verification.

The Chairperson asked why there was a need for de-activation of the SIM card if both persons were available for verification. It was important to remember that the interest was in the details of the person who would use the phone or card. The Committee was not really concerned about what the service provider would do after a person had disposed of his phone or SIM card.

Ms Botha said that the idea of de-activating the SIM card came at a stage when the drafters had not yet envisaged that the two people would go to the registration office at the same time. De-activation would have been relevant in this instance because it would force the new owner to go and register.

The meeting was adjourned.