Regulation of Interception of Communications &Provision of Communication Related Information Amendment Bill, [B9-2006]: delibera

JUSTICE PORTFOLIO COMMITTEE
13 June 2007
REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION RELATED INFORMATION AMENDMENT BILL, [B9-2006]: DELIBERATIONS

Chairperson: Ms F Chohan-Khota (ANC)

Documents handed out:
New version of Bill B9-2006 dated 13 June 2007

Audio Recording of the Meeting

SUMMARY
The Department of Justice presented a further draft of the Regulation of Interception of Communications and Provision of Communication-related Information Amendment Bill (RICA), and indicated the places where the wording had changed, following the last meeting of the Committee. The Chairperson stressed that at this meeting the Members would merely be looking at the wording of the different Options, but not yet making any decision on which Option to choose for each clause to take forward to the final version of the Bill.

The particular changes related to the definition of address, the definition of "family member", and the definition of "identity document". Section 40 of the principal Act was being amended by Clause 2. The options for verification, as contained in Section 40(2) were tabled. It was noted that juristic persons were now being specifically included. Similar amendments related to the amendment of Section 40(3). The fields of information to be verified and the acceptable documents for verification were set out in the various options.
Clause 3, relating to amendment of Section 40(5) would need to be tightened, and a definition was needed for the references to "activate" and "activated". Clause 4, which contained amendments to Section 62(6), must mirror clause 40. It should be clear that Section 40 would apply to future cellphone users, and Section 62 applied to historic users, who would also need to register within a fixed period. The Chairperson asked the drafters to check whether there were already clauses to deal with who, at the Service Providers, was authorised to give information on registered users of the cellphones, the fact that the information must be treated as confidential and that there would be sanctions for breaches of confidentiality.

The Chairperson asked the drafters also to check and if necessary extend the definition of "customer" to include a past customer who might have used the cellphone for illegal purposes. She asked the drafters to check and if necessary include references to further sanctions related to withdrawal of licences on consistent or repeated failures to comply with the provisions of the Act. She requested that the sanctions should refer consistently to periods of twelve months.

A member indicated that she had some fundamental difficulties with the concept that foreign visitors would not only have to sign up in their host country for roaming facilities but would also have to register before being able to use their cellphones in South Africa. This was an issue that would be debated at a later stage.

A new draft of the Bill would be prepared and debated on the following Friday 15 June.

MINUTES
RICA Bill B9-2006, Further changes to wording of options: Briefing by Department of Justice
A new version of the Bill was tabled (see attached document)

Mr Sarel Robbertse, State Law Advisor's Office (SLA), Department of Justice said that he would take the Committee through the latest changes to the wording. He indicated that the previous changes were highlighted or appeared in bold, and that the most recent changes appeared both underlined or scored through, and enclosed in { } brackets. Most of the clauses still had a number of options listed.

The Chairperson indicated that for the next draft the highlighting should be removed and only the most recent changes should be marked.

Mr Robbertse then described the changes as follows:

Clause 1: definition of "address"
Mr Robbertse indicated that changes had been made to the Option 3 definition. Sub-paragraph (a)(iii) had been deleted. The word "work" that had appeared in (a)(i) was now substituted with the word "employed".

The Chairperson said that it was necessary also to look at the definitions of "informal area" or "informal settlement", because there were places, both rural and urban, where no formal numbers or street addresses existed. She suggested that there was a need to state somewhere that an informal area would be a place where there were no street designations or physical addressed allocated. She pointed out that this could apply to rural areas, informal urban areas and any other settlements where it might be necessary to use a church or store as the closest address. Sub-paragraph (a)(ii) would then need to cater for this new definition.

Imam G Solomons (ANC) said that there was other legislation where these terms were defined.

The Chairperson said she would prefer it to be defined in this legislation and therefore the definition should contain the reference that "rural areas (or informal areas), for the purpose of this legislation, will mean....." If all informal areas could be defined together then there was no need to make a distinction between rural and urban informal areas.

Adv L Joubert (DA) asked if the stores should not be limited to those that were agencies of the post office.

The Chairperson noted that these were not necessarily the largest outreach as the retail stores reached and were accessed by more people. The verification process, rather than the stores used, was the issue needing to be addressed.

The Committee agreed that Option 3 was the preferable option and this should be carried forward, as now amended, into the next draft.

Clause 1: Definition of "family member"
Mr Robbertse said that previously the definition included paragraph (c), now numbered as Option 1. The State Law Advisors (SLA) had looked at the definitions of family members contained in the Sexual Offences Act, which took into account consanguinity, family lines and life partners. The current Option 3, although not worded in quite the same way, was wide enough to cater for all these relationships. It had split up the concepts of biological and legal relationships (including affinity by marriage, adoption or foster care) and added the concept of a permanent life partner. Biological relationships were very wide. and therefore he would like to hear from the Committee whether this should be limited.

The Chairperson indicated that relationships of in-laws were now included. The Sexual Offences Act spoke of relationships by marriage in the ascending or descending lines and she wondered if this should not be included.

Mr Robbertse believed the current wording did cater for both ascending and descending lines, and pointed out that it could include the lateral lines as well.

Ms S Camerer (DA) was concerned that Option 3 had left out a person with a sense of responsibility, such as someone who looked after a child, but had no formal relationship nor a foster relationship, and this was included in some of the other Options.

The Chairperson explained that Option 3 could be seen as the "limited" option. At present the Committee was not choosing between the options, but was merely working on the wording. The relative merits of the Options would be discussed later. She agreed that Option 3 was not as broad as Option 1, but the Committee was not currently making a choice between the options.

Clause 1: Definition of "Identification Document"
Mr Robbertse noted that in Option 3, paragraph (b) had been amended to include a travel document or passport and this was defined by reference to the definitions of passport in the Immigration Act. The other option would be to take out the references to the Immigration Act and put in a separate definition in this legislation.

Ms Ina Botha, State Law Advisor, DOJ, said this definition was in line with the principal Act. If the definition of ID document were to be deleted in the principal Act, then definitions would be needed here. If the definition in the principal Act were to stand, then subparagraph (b) in this Bill would not be needed. She pointed out that the principal Act also matched with the reference to passports for non-South Africans.

The Chairperson noted that the paragraph (d) was not included in this current version. She suggested that the wording with a strike-through, which referred to the Immigration Act, could be deleted from the next draft altogether. She agreed that the current references were preferable, as they took into account the possibility of children under 16 having cell phones.

Clause 2: Substitution of Section 40 of Act 70 of 2002: Information to be kept by telecommunication service providers (Pages 10 and 12 of draft Bill)
Mr Robbertse referred the Committee to pages 10 and 12 of the draft Bill, pointing out that these pages related to various provisions of Section 40 of the principal Act.

The Chairperson asked that the references to other sections or numberings would need to be checked, and Mr Robbertse agreed that this would be done for consistency.

The Chairperson confirmed to Members that the SLA had been asked to split up the options. Option 1 referred to full name and surname, and Option 2 to initials and surname. The references to SIM numbers had been inserted into Option 2. Juristic persons were also included. For non-South Africans reference was made to the country where the passport was issued.

Mr Robbertse said that the verification of initials and surname option was quite wide and this could probably be regarded as included a juristic person.

The Chairperson would prefer juristic persons to be specifically included in the options.

Mr Joubert asked why both the date of registration and the registration number would be needed for a juristic person.

Mr Robbertse said this might help to speed up the registry enquiries, but agreed that perhaps either the date of registration or the registration number would be sufficient.

The Chairperson agreed that this should be worded in the alternative. All other details as contained in the options must be included.

Clause 2 : Amendment of Section 40(3) (Page 14 of draft Bill)
Mr Robbertse indicated that Option 5 now included details on verification of the address, and details of a family member. Sub-paragraph (b)(ii)(bb) was reworded by insertion of "where applicable" and deletion of the phase "if registered" from the end of the phrase.

The Chairperson once again suggested that either the date of registration or the registration number would be sufficient for juristic persons, consistent with the discussions earlier.

Mr Robbertse added that Option 6 was redrafted to make provision for the information to be verified by telecommunication service providers, and to provide for the manner in which the information must be verified.

The Chairperson indicated that she would not like the family member to be included under Option 6. The previous version of the Bill had included family members under Option 5, which was later renumbered to Option 3. In the middle of Option 4 there was also reference to a family member, in respect of an address contemplated in paragraph (1). That option mirrored all the references relating to the definition of family members' addresses.

Mr Robbertse added that provision was also made that sub-paragraph (3)(a)(i)(ii) and (iii) set out the fields of information to be verified, specifically in relation to natural persons and authorised juristic persons, which would include the full names, ID number or verified identity of a person. Sub paragraph (3)(b) would inform the service provider how to verify the information. An ID document by definition included a passport. The information in sub-paragraph (a)(ii) related to the information in respect of a juristic person, and included registration documents, founding statements, or documents such as tax or VAT returns. All addresses would have to be verified, but this could be done by producing any one of a number of different documents, such as services accounts, which should not be more than three months old, or other types of agreement that could be more than three months old, because they were inherently documents of a longer life, like rental agreements, credit agreements, insurance policies or an annual television licence.

The Chairperson noted that the words "to the satisfaction of the service provider" should have been taken out, as the words "including a... " and "any other similar document" were now stated.

The Chairperson suggested that if the documents of a longer life were merely referred to as "current" this would cut out the need for including the words "valid or unexpired".

Mr Robbertse agreed that if this was done, then sub paragraph (3)(a)(iv) could then be deleted.

Mr Robbertse noted that provision was made in (v) that the authority of the juristic person could be verified, and once again this used the wording "documentation to the satisfaction of the telecommunication service provider".

The Chairperson indicated that this subparagraph should use the words "by means of a letter of authority"
and that this should include documents such as an affidavit.

The Chairperson asked where verification of the rural areas was included.

Mr Robbertse said that this would be covered by subparagraph (3)(a)(iii), which was included as a catch-all clause, to provide that each and every address could be verified. All the documentation that was listed could apply also to a rural area.

Clause 3: Amendment of Section 40 (5), Option 3 (Page 19 of draft Bill).
Mr Robbertse indicated that Option 2 had been redrafted to apply to cellular phones that had been activated, and as an alternative to refer to phones that had been allowed access to the network.

The Chairperson noted that "active" did not mean "activated". She wondered rather whether there should be a definition of "activate", to the effect that this meant giving access to the networks and that "activated" should be described as having a corresponding meaning.

She also indicated another technical change. The word "a" before the deletion of "an activated" in sub-paragraph (5)(a) must be deleted.

Mr Robbertse agreed that this should be done

Mr Robbertse pointed out that the word "notify" had been substituted with the word "provide". The references to "person" under subparagraph (i) had been substituted by "customer" The word "or" would be used instead of the word "and".

Ms Camerer indicated that the grammar of the clause needed to be tightened. The phrase should read "provide with" instead of "provide of" and there were other minor technical changes.

Clause 4 : Amendment of Section 62(6)(a) (Page 23 of document)
Mr Robbertse indicated that Option 2 had been changed. The words "prior to the fixed date / the date of commencement of this section" had been inserted. He would prefer to use the words "prior to the date of commencement of this section".

The Chairperson agreed. She said that this would be mirroring Section 40. Once the Act was passed any future cellphone holders would have to register. This also now provided a fixed period during which historic customers must register.

Mr Robbertse referred to another alternative, marked with "{ }" brackets. He indicated that the reference to "owning" could be a problem in this second alternative of Option 2.

The Chairperson thought that the first alternative to Option 2 was preferable. The second alternative had used the concept of owning, rather than activating, a cellular phone and that did not correlate with other wording elsewhere in the Bill.

Mr Robbertse also said that under that same Option 2, sub-paragraph (b) now included a reference to sections 40 (1) and (2) because these also referred to communications registered. All subsections of Section 40 were now covered.

The Chairperson pointed out that Section 40(1) stated that a telecommunications service provider should not activate a SIM card unless there was compliance with 40(2). She wondered if the wording should not be changed around. She suggested that the words "Notwithstanding the provisions of Section 40(1)" be included before the listing of sub-paragraphs (a) and (b). This would make it clear that there was a distinction between Section 40 new customers, and Section 62 historic customers. The main Act included a reference to transitional provisions. Section 62 would be the transitional provision for historic cellphone users. Then the wording in sub-paragraph (b) should refer to Sections 40 (2), (3) and (4).

Mr Robbertse added that sub-paragraph (c) now referred to Sections 40(5), (6) (7) and (8).

The Chairperson indicated that the current numberings were very confusing, and must be sorted out. She understood that there was some doubt whether the sub-paragraphs would be split up or joined.

The Chairperson the moved to the references to Section 39. She asked if there was something in the interception legislation that dealt with security of the information provided. If so, then they must be specifically cited. If not, then it was necessary to ensure that they were inserted. In particular the provisions must cover who, at the Telecommunications Service Providers, would be designated to give the information, that they were the only ones who could be approached, that there must be confidentiality of the information, and that any breach of the confidentiality must be subject to sanction.

Mr Robbertse thought that there were prescripts in the Act already, but he would check and include them in the next draft.

Clause 5 : Insertion of Section 62A (Page 28 of draft Bill)
Mr Robbertse indicated that the words "to a person used / employed by telecommunication service providers to record the information contemplated in Sections 40 and 62(6) of the Act " had been added to the new section 62A. He read through the wording.

Definition of "customer" in the principal Act
The Chairperson indicated that she was worried about the definition of customer. Section 39 allowed an applicant to obtain information about a customer. However, if a person was no longer a customer, it did not seem that information could be given. She cited a hypothetical example of a person using the cellphone to organise a heist, then giving it away to an unsuspecting third party, and changing the details in the prescribed fashion. Once the heist was investigated, the applicant investigating officer would request the details, and would obviously be led to the current customer. The Service Provider could say that the information relating to the previous customer could not be provided. She therefore asked that the definition of "customer" in the principal Act must be looked at again.

Mr Robbertse said that the customer did refer to the current contracts or pay-as-you-go contracts but he would double check this point.

Failure to comply with provisions of Act and Bill: Sanctions
The Chairperson noted that there was a sanction provided for, of R100 000 per day, for each day on which there was failure to comply. She asked for confirmation that, even if the fine was paid, the service providers would still need to comply, but wondered if there were any further sanctions relating to withdrawal of the licences.

Mr Robbertse said that there was a provision in the Act, Section 50(6), that for second convictions on an offence referred to in (5)(1)(3)(a)(ii) the licence could be withdrawn. He agreed that this reference could also be extended to refer to the new provisions of the Bill.

The Chairperson requested that specific references must be included, either by way of a separate sub-clause, or by amendment to the current wording of Section 50(6).

Length of sanctions
The Chairperson also suggested that wherever sanctions of three months were referred to, a period of twelve months should be substituted, so that there were uniform provisions.

Roaming provisions: use of foreign cellphones in South Africa
Ms Camerer explained that she did not believe that there should be legislation to prevent foreign visitors from using their roaming facility as soon as they landed. She asked whether the options before the Committee would allow foreign visitors simply to switch on and use their cellphones on a roaming facility as soon as they entered the country.

The Chairperson said that the current provisions would not allow people to roam automatically. All cellphone users, local and foreign, would have to register their numbers.

Ms Camerer asked whether this applied in any other part of the world, and called for technical input by the cellphone operators. She assumed that a cellphone service provider in the country of origin would need to register the foreign visitors for a roaming facility, but did not think it was correct that the visitor would have to go to a kiosk and register again.

The Chairperson indicated that this was an issue that would have to be debated at a later stage.

Ms Camerer still was not certain about verification of an address where the address was a rural store.

The Chairperson indicated that this had been discussed earlier in the meeting.

Imam Solomon noted that South Africa could legislate for national service providers. His understanding was that any roaming applications would have to be done via a domestic service provider, and they must ensure that they complied with the legislation. He thought that this point was adequately covered in the legislation.

The Chairperson noted that a new draft would be compiled for consideration on Friday at 09:00.

The meeting was adjourned.