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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
30 August 2001
INTERCEPTION AND MONITORING BILL: HEARINGS
South African Police Service submission
CELL C submission
South African Chamber of Business submission (see Appendix)
SAPS, CellC and SACOB made submissions. While all presentations supported the heightening of security and fighting of crime, they warned that this Bill should be careful not to infringe on the rights of privacy of ordinary citizens. A key concern of both CellC and SACOB was the question of who was going to shoulder the costs of implementing this policy.
South African Police Service submission
Dr Jacobs led the SAPS presentation. He said that SAPS had a problem with the poor definition of communication as presented in the Bill. He also emphasised that the internet was not the only communication method, and that other electronic communication methods also needed to be covered by the bill.
He highlighted the fact that serious offences were not clearly defined. He suggested that reference be made to categories of offences. For example any offence that involves drugs, weapons of war, laundering and theft qualified to be categorised as organised crime. He also added to this list any offence relating to the economy of the Republic.
Mr Landers (ANC) ask for an indication as to the extent of crime that was carried out with the use of prepaid systems. He noted that a telephone conversation required interception first, and then monitoring
Dr Jacobs answered that no statistics were immediately available to answer the question but from his experience, prepaid systems were used extensively in crime. He said that the use of the words interception and monitoring was causing unnecessary confusion. In Britain only the word interception is used.
CELL C submission
Mr Zwelakhe Mankazana led the CellC presentation. He emphasised the fact that Cell C is a newly licensed cellular operator and is thus undergoing the process of preparing for its commercial launch into the market.
He said that Cell C supported the intention of the Interception and Monitoring Bill insofar as it protects the country against serious crimes, but also acknowledged that monitoring and interception if misused, could lead to a violation of people's and companies' rights to privacy.
He said that in its current form, the Bill lacked clear accountability processes and imposes a high burden on private, commercial operators and service providers.
He suggested that the government cover costs for infrastructure and facilities set-up. He also suggested that Section 205 of the criminal act should not be applicable to the Interception and Monitoring Bill.
Adv. Masutha wondered if Cell C was suggesting that the capacity for monitoring purposes should be moved over to the State
The Chairperson commented that in all countries, there has not been a case where the legal obligation has not been on the provider.
Mr W. Lacey said that SACOB had a common interest with government in fighting crime. He however noted that telecommunications is a costly item in South Africa, and without doubt the costs of implementing this Bill would be passed on to the consumer.
The meeting was adjourned.
Interception and Monitoring Bill - Memorandum of Comment
Privacy - 'The right to be left alone' (Louis Brandeis - US Supreme Court Justice)
1.1 SACOB is the largest multi-sectoral business body in the country in that through some 80 autonomous Chambers throughout the country, it represents over 35000 businesses. The majority of its members are small and medium size enterprises, while its direct member component provides effective representation for the majority of South Africa's large corporations. Major industry-specific and sectoral associations also form part of SACOB's broad constituency.
1.2 The Interception and Monitoring Bill tabled by the Minister for Justice and Constitutional Development will undoubtedly affect all businesses. The Bill allows for a specified government agency to intercept electronic and written communications and to impose a prohibition on encrypted communications. Such a broad invasion of privacy is bound to produce controversy.
1.3 In the time available for comment it has not been possible to consult effectively with SACOB's countrywide membership. The commentary below is based upon cursory consultation with SACOB's major Chambers.
1.4 Other than the brief General Explanatory Note at the heading of the Bill, there is limited information provided as to the purpose of the legislation, and the evils it seeks to address. However, from the provisions set out under the definitions of 'communication' and 'serious offence', it can be safely assumed that the intention is to allow government to combat the threat of cyber-crime. There must be no equivocation as to SACOB's support for government's efforts to combat crime in whatever guise. The question, if any, is the extent to which society is prepared to sacrifice civil liberties in that effort.
2. Potential Constitutional Challenge
2.1 Clauses 2(2) of the Bill permits 'any person' to monitor any communication where such person is a party to that communication or consents to such monitoring. Clause 2(3) permits any person who is a 'party to a communication' to monitor and intercept a communication 'without the knowledge or permission of the other party to that communication.' This latter clause is clearly prima facie unconstitutional and could be open to, and is likely to face, a constitutional challenge. Clause 14 (Privacy) of the Constitution states that 'Everyone has the right to privacy, which includes the right not to haveâ€¦.. (d) the privacy of their communications infringed. However Clause 36 (1) (Limitation of Rights) allows for the rights in the Constitution's Bill of Rights to be limited according to a number of factors, where such limitation is deemed 'reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factorsâ€¦.'
2.2 Privacy is an ill-defined concept. It might be argued that the extent of privacy protection is a distinguishing feature between democracies and dictatorships. Most people would assume that, provided they conform to the laws of the land, they have an inalienable right to privacy. The communication age, and more particularly the computer age, has dispelled that assumption, and if nothing else this proposed legislation shows how wrong that assumption is. SACOB would urge that as the right to privacy is a constitutional right, there should be some reference to the intention of government to safeguard that right where it does not conflict with its efforts to contain / control cyber-crime. As it presently reads, it is small wonder that the legislation has been interpreted by many as a threat to the individual - a threat no less serious as those threats that the state hopes to seek security from by the enactment of the legislation.
2.3 Accordingly, SACOB submits that, to the extent that it appears to pose a threat to the citizen's constitutional rights, there should be a preamble to the legislation, affirming the constitutional commitment to safeguard the right to privacy, together with adequate and effective checks and balances to guard against abuse of those rights.
3. Bill Contents
3.1 Clause 2 (3) refers to 'Any personâ€¦may, in the course of the carrying on of any businessâ€¦interceptâ€¦monitor the communication.' This must surely be defined more precisely so as to limit its application to those directly involved in the communication transmission business or other such limitation.
3.2 Clauses 4 (2) (b), 9 (1) (b) and 10(2)(b) make reference to the 'national interest' threat. According to Clause 4(1), a judge may direct that an interception be undertaken in respect of applications directed by officials/officers defined in Clause 4. SACOB has always been wary of the use of the all- encompassing 'national interest' argument for determining state interventions that in this case could infringe the constitutional rights of citizens. Throughout history governments have sought to justify the most oppressive, horrific and barbaric actions as being in the 'national interest.' The question to be asked is whether the system of checks and balances (as envisaged in Clause 4) will effectively allow the country to rein in the potential excesses of both the elected and the non-elected. In short the legislation must lay down the means by which the ends can be pursued, and not the reverse.
3.3 Clauses 6 and 7 deal with the costs that will be incurred in the execution of this legislation. Clause 7 (2) states that 'a service provider must at own cost and within the period, if any, specified by the Minister â€¦ acquire the necessary facilities and devices to enable the monitoring of communications â€¦ (3) The investment, technical, maintenance and operating costs in enabling a telecommunications service to be monitored, must be carried by the service provider providing such service.' It would be naïve to expect that anyone other that the consumer would ultimately bear the costs of enforcing this legislation. SACOB must argue forcefully against imposing too severe a burden on the service provider sector. Whilst business supports efforts to combat crime in whatever guise, the cost implications must be borne in mind and the apportionment of those costs agreed to. Traditionally law enforcement costs have been borne by the central fiscus. The proposals outlined in the legislation indicate that in the control of cyber-crime the costs are to be borne by the consumer. This principle requires further clarity. Furthermore, in the event of the legislation being passed, SACOB would insist that the costs of the enforcement of the legislation be accounted for in a transparent manner. Society must be informed as to the costs incurred in policing cyber-space.
3.4 Clause 11 provides for the maintenance of records by service providers and the provision of such information to the law enforcement agencies. It must be incumbent upon all service providers to notify their customers that such information has been lodged with such agencies and that it is their responsibility to notify any changes to the required information. The text does not clearly specify whether the service provider is to be held responsible for the accuracy of such data. SACOB believes that the responsibility for accurate and correct information can and should lie with service user.
Johannesburg 13 August 2001
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