Regulation of Interception of Communications &Provision of Communication-Related Information A/Bill: briefing

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
6 June 2007
REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION-RELATED INFORMATION AMENDMENT BILL: BRIEFING

Chairperson: Ms F Chohan-Kota (ANC)

Documents handed out
Working draft of the Bill as of 5 June 2007
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 Act 70 of 2002

Audio Recording of the Meeting

SUMMARY
The implications for selling or exchanging handsets and SIM-cards were discussed. Distinctions were made between provisions for subscribers prior to the legislation being enacted (Section 62), and the procedures for new subscribers who became cellphone owners after the legislation is enacted (section 40). The provisions in Section 40 of the Bill would act as the framework and would need to be mirrored by the provisions relating to historic subscribers in Section 62.

It was emphasised that the onus is on the service provider to verify the details of owners.

MINUTES
The Chairperson suggested that discussion proceed with an issue flagged from the previous day's meeting, that being, an individual selling a cell phone to someone other than a family member in Clause 2.

Clause 2 Substitution of section 40 of Act 70 of 2002
Section 40(5)
Ms Ina Botha (Drafter and State Law Advisor: Legislative Development) referred to Option 3, where it states that any customer who, at the date of commencement of this section, sells or disposes of a cell phone to anyone other than a family member, should notify the service provider together with the potential new owner. The service provider must be provided with the full names and identity numbers of both individuals, and the person who is to receive the cellphone or SIM-card should provide further particulars in accordance with Section 40(2). Part (b) of Option 3 referred to the actions that must be taken by the service provider after receipt of the particulars as set out in part (a).

The Chairperson clarified that when the two parties appear before the service provider, the onus is on the service provider to verify that they are indeed who they say they are. What then needs to take place is exactly the same process as outlined in Section 40, with regard to recording and storing. It is not necessary to repeat Section 40 but the same procedure must be followed.

Clause 3 Amendment of section 51 of Act 70 of 2002
Mr Robertse (Drafter and State Law Advisor: Legislative Development) said that this amendment was basically to ensure compliance by service providers. Service providers who did not comply with Section 40 (1), (2), (3), (4) or (6) or Section 62(6)(a), (b) or (c) could face a fine of up to R100 000 per day. He went through the options. He noted that:

Option 1 makes provision for punitive measures for contravention and ensures that the onus is on service providers to inform customers of their obligations in terms of providing information.

Option 2: (3C), the deletion in subsection (5) does not do away with the need for compliance after payment of a fine. Once the service provider paid the fine after being found guilty of an offence, it had to comply.

Mr S Swart (ACDP) referred to Option 1 for (3A) on Page 21 and said that the only difference between this and the original text of the Bill was the insertion of section 40(7). He asked for clarity.

The Chairperson said that 40(7) was a new clause. Section 39 applied only to the service providers. The new clause has the same effect as Section 39, but does not compel service providers to keep hard copies of identity documents. Section 40(7) is underlined because it is still only an Option.

Ms Botha pointed out that if one looks at the criminalisation of failure or contravention, it should be noted that the obligation to comply applies to both service providers as well as customers.

The way that the main act is drafted, Section 40 deals with all the contracts and pre-paid services that are going to be concluded once the legislation is in place, while Section 62 deals with those contracts and prepaid subscriptions that are already in existence. Words like “activate” can therefore not be used, as existing subscriptions are already activated. It then becomes a matter of how one deals with historic subscriptions once the legislation is in place.

Mr Robertse said that what was required was to mirror the provisions for subscriptions already in existence.

The Chairperson said that there was nothing in the Act that adequately explained this mirroring process with regard to historic subscriptions and those that came into effect after legislation. Two options have been drafted in Section 40, and this could be seen as an introduction, because it provides the framework for how things will work. Section 62(6)(a) is not very clear and has to be read a few times before its context can be understood.

Mr Roberts said that all provisions discussed at the previous meeting had to be mirrored, as they would all be applicable. A time period must be stipulated in which the whole process had to take place. The main thing was to oblige customers that if they did not register within a specific time period, their services would be discontinued.

Ms Botha said that Option 2 of 62(6)(a) must also be mirrored in Section 40(1) of the Act.

Mr Robertse said that this means that all the information relating to the customer, such as the MSISDN and IMSI numbers, identity number and address, should be included in Section 40.

In reply to the Chairperson asking if Section 40(3) applied to verification, Mr Robertse confirmed this.

Mr Robertse said that Section 40(5) referred to the transfer of a cellular phone and SIM-card from one person to another.

The Chairperson suggested that Section 40(5) would go under the broad heading of transitional arrangements.

Mr Robertse said that Section 40(6) referred to the obligation by the service provider to update information that is received.

The Chairperson clarified that Section 40 deals with people who are still going to ask for services, and also with changes in ownership. She asked whether the issue of transfer should not be moved out of Section 40 and into a different section.

In answer to Mr Robertse asking where it should be moved, the Chair suggested putting it under a Section 40(B)(a). The Chairperson said that this provision related to the problem where a person owns their phone before the Act comes into being. The person would then go to register their details in accordance with Section 62. If the person later passes on the phone to somebody else, the person could then say that the clause did not apply as the person owned the phone prior to the legislation being enacted. Putting this into a separate section might have to be considered.

Ms Botha said that Section 40(4) is not limited to date of commencement and that Section 40(5) would refer to anyone who had transferred their phone after the commencement date.

The Chairperson said that this provision would just be a once-off, as anyone who had not registered would have their service deactivated. They would then have to go in terms of Section 40 to get the service reactivated.

The Chairperson asked if it would hurt to put 40(5) in “c”, and whether 40(5) and 40(6) should be left in.

Mr Robertse said that it would not hurt to put 40(5) in “c”, or to leave 40(5) and 40(6) in.

The Chair agreed that it would not do any harm, adding that it would fall away within 12 months anyway.

The Chairperson noted that there was a group of Options that needed to be mirrored.

Clause 5 Insertion of section 62A in Act 70 of 2002

Mr Robertse said that the insertion of 62A basically related to the tariffs determined by the Minister regarding payments that would be made to persons that would record and store the information.

The Chairperson said that if these people were not employed for the purpose of recording and storing, they could not record and store, as there was a clause that restricted access to the database.

The Chairperson referred to Section 40(5) and said that the word “record” must be kept, and that the word “use” should be followed by a slash and the word “employed”. It was unlikely that they would also store the information. The storage facility itself still needed to be worked out, so the wording should just state “the people employed to record the information”.

Mr Robertse said that Option 2 of 62A was only different from Option 1 in that it stipulates that the Minister of Communications is the controlling functionary.

Mr Robertse said that 62B provides for the fact that the service provider must from the date of commencement of this section, inform customers of their obligations, how the obligations must be complied with, and also the consequences of non-compliance.

Mr Robertse referred to Section 62C and said that the information referred to in Subsection 1 must be stored for a period of 5 years.

The Chairperson said that the Committee would proceed on 08 June 2007. The meeting was adjourned.