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

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
8 June 2007
REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION-RELATED INFORMATION AMENDMENT BILL [B9-2006]

Chairperson: Ms F Chohan-Kota (ANC)

Documents handed out:
Working draft of the Bill as of 8 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 Committee went through the newly drafted options in the Bill. Clause 2 was discussed which substitutes section 40 of Act 70 of 2002, relating to the information to be obtained by service providers for new subscribers who became cellphone owners. It was decided that all references to “a letterhead” as proof of address were to be removed. During the discussion of Section 40(5), relating to the recording and storing of information pertaining to the new owner of a SIM-card, the distinction between information obtained from the original owner of a SIM-card and information obtained from the new owner after transfer, was emphasised. During discussion of the amendment of section 62 of Act 70 of 2002, referring to the date of commencement for recording and storing of information, the Chairperson emphasised that the retrospective aspect in respect of historic data, must be made clear. The consultative relationship between the Minister of Justice and the Minister of Communications, was confirmed during discussion of the insertion of section 62A in Act 70 of 2002, with reference to the determination of tariffs. The Chairperson said that voting on the Bill would take place before the end of the term.

MINUTES
Note: The first 45 minutes was not monitored as the meeting commenced earlier than advertised.

The Committee went through the newly drafted options in the Bill:

Clause 2 Substitution of section 40 of Act 70 of 2002
Information to be obtained by telecommunications service providers

Section 40(3) Option 2
The Chairperson said that “a letterhead” in 40(3)(b)(vii) as a means of proof of address, must be removed.

Section 40(3) Option 1, Option 2 and Option 3
The Chairperson said that the only difference between Option 1 and Option 2 was “three months”. Option 1 should be left out. “Three months” should then be added to Option 3, which would become Option 2, as Option 1 would be removed.

Section 40(3) Option 4 and Option 5
The Chairperson said that Option 4 should be removed, as “to the satisfaction of the telecommunications service provider” was already covered in Option 5. Option 5 would then become Option 4.

The Chairperson said that only one option should refer to “family member”. Option 5 would be the option that refers to “family member”.

Section 40(3) Option 7
The Chairperson said that “a letterhead” must be removed.

Section 40(3) Option 7(a)(ii)
Ms Botha said that “to the satisfaction of the telecommunications service provider” must be removed.

Ms Botha said that “if registered” must be replaced with “where applicable”.

Section 40(3) Option 7(a)(iii)
Ms Botha said that “to the satisfaction of the telecommunications service provider” must remain.

Section 40(3) Option 7(a)(iv)
Ms Botha said that “family member” must be removed, as Option 5 already contained “family member”.

Section 40(3) Option 8
The Chairperson said that Option 8 would now become Option 6.

Ms Botha looked at Option 8 (now Option 6) and Option 7(now Option 5). She said that the part dealing with what needs to be verified, must be separated from the part dealing with documents used.

Section 40(3) Option 8(a)(i)
Ms Botha said that this was not problematic as there was a reference to identity documents.

Section 40(3) Option 8(a)(ii)
Ms Botha noted that this was different from identity documents.

Section 40(3) Option 8(a)(iii)
Ms Botha said that the reference to the address of natural and juristic persons is not problematic, as (b) provides an indication of which documents are for verification and which documents are for identification.

Section 40(3) Option 8(a)(iv)
The Chairperson said that “family member” must be placed in drafting brackets.

Section 40(3) Option 8(b)(i)
Ms Botha added that even when a school address was provided, utility bills should still be allowed (b)(i).

Section 40(3) Option 8(b)(ii)
The Chairperson said that “a letterhead” must be removed.

Discussion of Section 40(5)
Recording and storing of information pertaining to the new owner of a SIM-card.

Section 40(5)(a) Option 3
The Chairperson noted that this Section 40(5)(a) caters for SIM-cards registered with an operator before the transfer from one person to another.

The Chairperson said that the Committee should stick with “activated” rather than “used”. It was important to use a word that is able to stand on its own.

The Chairperson said that “notify” must be replaced with “provide”.

The Chairperson approved the use of the word “relevant”.

Section 40(5)(a)(ii) Option 3
The Chairperson asked whether all the particulars required for Section 40 include identity numbers.

Ms Botha said that (ii) in Option 3 refers to all other particulars.

The Chairperson said that “other” should be removed, and that (ii) should make it clear that all particulars contemplated in Section 40(2) in respect of the new owner, must now be stored in relation to the new owner.

Section 40(5)(b)(iii)
Ms Botha noted that this referred to verification of the new owner’s identity.

Section 40(5)(c)
Ms Botha explained that after all the information has been received, all the particulars required in terms of
Section 40(2) must also be stored in relation to the new owner.

Discussion of Clause 4 Amendment of section 62(6) of Act 70 of 2002

The date of commencement for recording and storing of information.

Option 2
The Chairperson pointed out that whereas Section 62(6) of the principal Act had referred to a person who provides a mobile cellular telecommunications service, the current reference was to “a telecommunications service provider who provides a mobile cellular telecommunications service".

The Chairperson noted that “fixed date” in the principal Act has been changed to “at the date of commencement”.

The Chairperson said that “prior to” must be inserted before “the date of commencement”.

Ms Botha said that Option 2 of 62(6)(a) should then read as follows: “a telecommunications service provider who, prior to the date of commencement of this section, provides a mobile cellular telecommunications service must, within 12 months of the date of commencement, record and store the information of all customers on its telecommunication system, if such particulars have not already been recorded and stored in terms of Section 40”.

The Chairperson pointed out that the details required for Section 40 must be registered, as this is historic data. Option 2 of 62(6)(a) was not clear enough about the retrospective aspect, and the Committee needed to be quite sure that Section 62 applies.

The Chairperson said that “commencement date” should be replaced with commencement date/fixed date, as an option. It should further be made clear that this relates to information obtained prior to the commencement of the Act.

Ms Botha said based on the decisions of today it implied that part of this section was perhaps not needed.

The Chairperson said that this might be so from a stylistic point of view and asked the drafters to look at this.

Discussion of insertion of section 62A in Act 70 of 2002

Determination of tariffs

Option 2
Ms S Camerer (DA) asked why “after consultation” was included.

The Chairperson said that “after consultation” has been used consistently throughout the Bill, whenever the Minister is referred to. It was important to retain “after consultation”, as it needed to be clear that the Minister of Justice would be required to consult with the Minister of Communications on certain issues.

Ms Camerer asked whether the Minister of Justice would comply when the Minister of Communications vetoed something during consultation.

The Chairperson said that there was no reason for the Minister of Justice to do something against the will of the Minister of Communications, and that discussion would most likely resolve matters about which there was disagreement.

Concluding statements by the Chairperson

The Chairperson said that a new draft of the Bill would be presented the following week. It was important to finalise the Bill as quickly as possible, as it had been with the Committee for about one year. Voting would take place in the National Assembly before the end of the term.

The meeting was adjourned.