Interception and Monitoring Bill: deliberations

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Justice and Correctional Services

01 October 2001
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Meeting report

 

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
2 October 2001
INTERCEPTION AND MONITORING BILL: DELIBERATIONS

Chairperson: Adv J H de Lange

Documents Handed Out:
Summary of Submissions on the Interception and Monitoring Bill

SUMMARY
The Committee considered submissions made on the Interception and Monitoring Bill. Many of the submissions were not discussed in detail because they presented concerns or issues which had already been suggested, discussed or resolved. The issue of private detectives and how this Bill would relate to them was discussed at length.

The progress of the Correctional Services Amendment Bill, currently being considered by the Portfolio Committee on Correctional Services, was considered. This Bill seeks to provide that the Minister of Correctional Services together with the Minister of Justice could amend or do away with the amount and conditions of bail, releasing prisoner from detention. The Justice Committee took issue with this matter saying that this would not be allowed in terms of the doctrine of separation of powers.

MINUTES
5.) Ad definition of "Monitoring Device"
Adv de Lange told the Committee that Mr Labuschagne, the drafter from the Department, was to reexamine this section. The only major point in this section was the addition of the words 'or archive' in the definition.
Institutions like MTN, that keep a vast amount of records, had raised concerns. Because of the large amount of information it is necessary for these institutions to archive their records making it easier for them to be kept for periods of time.

Adv de Lange asked Mr Labuschagne what his view on the matter was.
Mr Labuschagne said that this input had come in after the technical hearings, as a result he was ignorant as to exactly what implications this would have. He would thus have to get technical input on the matter before he could comment.

On UUNet's submission in point 5(b) the Committee said this was a valid consideration because in the context of the Internet one would be viewing information.

6.) Ad Definition of "Postal Article"
Under this heading Marshal International raised the concern that postal articles which are sent or delivered by courier services or by another person or company appear to be excluded from the definition of a postal article.
Mr Labuschagne was in agreement with this point and said that the definition of postal article was in the process of being changed to provide for a much wider definition thereof. He had received a document from the NDPP which contained recommendations on the formulation on the definitions. These recommendations will be taken into consideration when considering this and other definitions

7.) Ad Definition of "Pre-Paid Telecommunications Service"
Both the institutions, namely the SAPS and the National Intelligence Agency (NIA), raised the same concern under this heading. That was that the words "mobile cellular" be removed from the definition so as to include all pre-paid telecommunications services.
Mr Labuschagne said that the NDPP recommendations by NDPP took care of this matter.

8.) Ad Definition of "Serious Offence"
The Committee referred to the submission made by UUNet under point 8(c), which was held to be illogical. Adv de Lange put this badly drafted suggestion down to a lack of an understanding of the law. The submission called for the Bill to provide that offences that have been, or are likely to be, declared inconsistent with the Constitution would not be offences. Adv de Lange pointed out that this was obvious. There was no need for this to be in the Bill because if an offence is inconsistent with the Constitution, then it would not be an offence.
UUNet's point 8(c)(ii) was approved as subsection (a)(iii) had already been removed. Their submission in point 8(c)(iii) was also taken to heart. This submission suggested a change to the definition of "compelling National interest". This matter was already being dealt with by the drafters.

The next submission came from the GCB who suggested that the reference to section 14(b) in paragraph (b) should be deleted because section 7 of the Drugs and Drug Trafficking Act, 1992, had been repealed in 1998. Mr Labuschagne said he had researched the matter and found the GCB's contention to be correct.

Next, in point 8(h)(iii) the GCB called for the deletion of paragraph (c). This matter was not decided as Mr Labuschagne was in the process of researching the matter. Point 8(h)(iv) was rejected and the subsection kept despite their call for the deletion of paragraph (f). On point 8(h)(v) however, the Committee agreed that paragraph (g) should be deleted.

At point (k) of the submission by the Office for the Control of Interception and Monitoring of Communications they changed the definition of a serious offence firstly by removing the proviso in subClause (a) of the definition. Adv de Lange recalled that the present construction of that section was to create a blanket prohibition or offence covering all types of organised crime and then a schedule to deal with specific crimes.
It was necessary that this Bill only provide for tapping in relation to crimes that would actually require tapping to prove. He referred to a number of crimes that were ordinarily hard to prove, that would be much easier to prove if tapping were used as a means to get evidence. One of the examples was corruption, a crime that was notoriously hard to prove. Often the only real way such a crime could be proven is if one of the parties confesses. Adv de Lange's point was that tapping should not be allowed, or even possible, in relation to crimes that could be proven just as easily in another manner.

9.) Ad Definition of "Service Provider"
Under this heading the Business Software Alliance called for the specific exclusion of 'information service providers'. The Committee failed to appreciate the manner in which the Business Software Alliance tried to differentiate so-called information service providers. The Committee decided that it would need technical input or at least an explanation as to what these potentially excluded institutions are.

10.) Ad Definition of "Telecommunication Service"
On the NDPP submission, Adv de Lange said it would be better to make provision for the inclusion of the Internet under the existing subsection (e) rather than put it in its own subsection.

Clause 2
Adv de Lange labeled this Clause, dealing with participant monitoring, as the most problematic one for two reasons. The first was because the provision was completely new and secondly because the section offered a potential way of getting around the requirement of a court order. He commented that the requirements for a court order needed to bulked and expanded. The second matter was that the Clause created a prohibition and this needed to be spelt out more clearly in the Bill. The Bill should spell out the full extent to which communication could be intercepted. In addition, the Bill did not state that monitoring or interception could take place only in terms of this Bill. Adv de Lange further pointed out that a many crimes, although necessary, were not created in this Bill. The example he gave was of a prohibition on the sale of equipment used for interception and monitoring.

Mr Swart (ACDP) agreed with Adv de Lange but asked if there were not any provisions, perhaps in the Telecommunications Act, currently outlawing the tapping of peoples' phones. Adv de Lange said that to his knowledge there were no such provisions.

Mr L T Landers (ANC) commented that his concern related to the Private Investigator (PI) industry. He called for a regulation of this industry, adding that if it could be done in this Bill he would be grateful. He also expressed his concerns that PIs were often unscrupulous and sold sensitive information. It might be best not to deal with a provision that sought to control the sale of equipment in this Bill. Adv de Lange replied that he identified the need for the regulation of the Private Investigation industry, but it could not be done in this Bill. Furthermore, matters such as those relating to the prohibition on the sale of equipment would be dealt with in this Bill, as would all other matters relating to interception and monitoring.

Ms F I Chohan-Kota (ANC) told the Committee that PI's have often been portrayed in a negative light. The fact was however that PI's do sometimes serve a valuable and positive service. She submitted that some of the most high-profile cases in South Africa have been solved through breakthroughs which came from PI's. If the Bill provided that these regulations were the only manner in which monitoring could be regulated, then in terms of allowing legal monitoring, especially in terms of Clause 3, PI's would be excluded from being able to legally monitor. Perhaps a resolution could be passed to provide that the Minister could exempt certain groups or categories of people, such as PI's.

Adv de Lange's reply to this was an emphatic 'no'.
Ms Chohan-Kota submitted that she could see no reason why this could not be allowed if the PI's industry organised itself into a professional institution, with a code of conduct and subject to the law.

Adv de Lange pointed out that nowhere in the world were private citizens given the power to monitor and intercept. These powers were used to solve crimes and prevent them. PI's on the other hand gathered information for only one purpose, and that was to further the interests of the person who hired them.
Ms Chohan-Kota indicated that she did not mean immediately but only in the future once the PI profession had been formalised and regulated under the law.
Adv de Lange was of a different mind. He pointed out that some of the greatest breaches insecurity came from PI's who bribe policepersons to help them in their own cause. The most noticeable example of this is where PI's use policepersons to get a section 205 warrant.

Adv M Masutha (ANC) asked how much power PI's should be given. He alluded to a the Security Industry Regulation Bill currently before the Portfolio Committee on Safety and Security which sought to regulate the PI industry. In the discussions around this Bill that Committee had heard from the industry, which was of the opinion that they should have some of the same powers that the police have. These would include powers of arrest and search and seizure. The most extreme view on the part of the PI industry called for PI's to have the same powers that the police had. There has been a huge exodus from the police force, with these ex-policepersons using their skills and resources to work for themselves. Adv Masutha suggested that this Bill be looked at to discover what other considerations existed.

Dr J T Delport (DP) pointed out that the area of concern would not only be the PI industry. He alluded to the espionage industry where huge companies might very well have industrial espionage and counter-intelligence departments.

Adv de Lange agreed with Dr Delport but stressed the fact that the salient point was that private detectives forwarded only the interests of the people who paid them. He also recalled that the more powers were given to PI's the more lucrative it would be for police to leave the Police Service and become a PI.

Ms Chohan-Kota referred to her earlier statements, saying that there were two forms of information gathering to be considered. The first type she spoke of was where private investigations gathered information for the personal use of their employers. This would include the situation where someone expects their spouse is cheating on them. They then get a PI to follow their spouse to either prove or disprove their belief. This form of monitoring by private investigators would not be stopped or even hampered by the advent of this Bill. The problem is that the validity of information such as this only comes into play if and when the information is brought as evidence in a court of law. The second type of information gathering is that specifically for use as evidence in a court. The only way to stop the invasive practice, in relation to the first type of information gathering, is to bring PI's into the loop and subject them to the regulations. If this were not done, then unwanted surveillance practices would continue unabated.

Mr Landers referred to a statement made earlier by Adv de Lange where he said he would like a broader prohibition. He shared this view and pointed out that in the old Act, namely the Prohibition of Interception and Monitoring Act, the prohibition read, 'no person shall', while the provision in this Bill read, 'no person may'. He submitted that the old provision was a lot more prohibitive than the present. Even the heading was more prohibitive in the old Act. In the Bill the heading to the section is 'Monitoring and Interception' while in the old Act the heading was' Prohibition of Interception and Monitoring'.

Adv de Lange said this was a good a point. In his opinion the ideal construction would be for Clause 2(1) to have its own Clause with the heading ' Prohibition of Interception and Monitoring' with the following section having the heading 'Participant-Monitoring'.

Adv Masutha pointed out that on a reading of Clause 2 it would seem that the Bill would be amending all laws inconsistent with it. His second point was that a wife whose husband was cheating on her, had certain conjugal right in relation to her husband. These rights are as enforceable and worthy of protection as other rights. To what extent would this woman be able to monitor her husband's communications in order to protect or enforce her rights? She was not a party to the communication but she did have an identifiable right that was being infringed. To what extent was the Bill consistent with such jurisprudence, if indeed there was any?

Adv de Lange said that the intercepting and monitoring provisions could not be used to satisfy civil claims. Here Mr Landers was quick to express his agreement, saying that surely this was the point at which the line was drawn. Interception and monitoring would be used to prove guilt in criminal matters but surely could not in civil matters. In relation to civil claims the police was suggested as a possible compromise.

Mr Landers then expressed his concern about subsections 2(2) and (3). These subsections dealt with participant monitoring, a section which the Committee approaches with great reservation. The Committee was again reminded that these participant-monitoring Clauses opened the door to widespread monitoring and created a possible way to get around the requirement of court approval. He used the example of the recent Umgeni Water case where the Chief Executive Officer tapped the phones of his employees without their consent or knowledge. When this was discovered, the CEO got into a lot of trouble.
Adv de Lange said that such a practice was clearly not allowed without the consent of the employees. Such consent could be provided for in the employment contract.

Ms S M Camerer (NNP) then also expressed her dissatisfaction with the participant monitoring Clauses. She felt that people should never be monitored in this way without their consent. Her opinion was that when you phoned someone, for example, you could tell tem that you were going to tape the conversation. Then if they did not want to be party to the conversation they could hang up. People should however, not be monitored in this secretive way. She also felt that recordings could be tampered with, and therefore they do not, or at least should not, carry that much weight. Ms Camerer submitted that the 'or' between sections 2(2)(a) and (b) should be changed to an 'and'. Surely there should always be a consensual element.

Ms Camerer continued saying she felt it was wrong because once an individual had said something in confidence and it was recorded, then the recorded conversation could be played back to whomever the person who made the recording pleased. This would then constitute a violation of one's right to privacy.
Adv de Lange interjected saying that this was a good point but the fact remained that once an individual said something to somebody else, it was up to the person being spoken to, to record that information in the way they feel best suites them.

Mr Labuschagne said that the intention behind Clause 2(2) was to cater for the circumstances where evidence is being sought for an offence. If this is the case, then it would be obvious that the consent of both parties cannot be required.

Adv de Lange conceded that this was a valid point but the section did not distinguish between this context, where evidence is gathered to prove a crime, and others. This problem was aggravated by Clause 2(3) which was more specific and provided for the situation where someone records a conversation in the course of conducting business. If the intention behind Clause 2(2) was as Mr Labuschagne had said then it would have to be changed to provide for that more clearly.

Ms Chohan-Kota asked whether the position relating to police trapping would be changed by any of these amendments. Adv de Lange was of the opinion that this would be taken care of through the Police Trapping Act. Ms Chohan-Kota however said that this Bill would probably change the position around any of the Clauses in that Act which relate to monitoring and interception. Adv de Lange said this was true. As a result an audit might be needed to discover exactly which legislation would be affected by this Bill and in what way. The Law Commission would also need to be consulted.

Adv de Lange considered the position on these matters in the United States, finding particular favor with some of the positions. One such principle was that the US distinguished between participant monitoring and third party monitoring. Third party monitoring was that form of monitoring where the individual monitoring was not a party to the communication and was monitoring without the consent or knowledge of any of the parties to the communication. The feeling in the US is that participant monitoring was inherently less offensive, as the party never discloses any information that he or she did not intend the other person to hear. Once it had been said, it was not unreasonable for that party to foresee that such information could be reproduced in court as evidence, whether it be through perfect recollection or by mechanical recording. Adv de Lange told the drafter to keep them in mind when reconsidering the Clauses.

Finally the Committee moved to discuss the actual submissions. The first was the submission from Marshal International, a sizeable international security company.
In their submission on Clause 2 at point 1(a)(i), Marshal International called for the legal occupiers of buildings to be legally allowed to monitor their premises. Adv de Lange said that what they suggested the case be was exactly what the Committee was trying to avoid. This what was termed third party surveillance, a form of monitoring that should not allowed.

Mr Jeffrey asked what would happen in the example of closed circuit television. On a reading of this section, monitoring one’s premises in this manner would not be allowed.
Adv de Lange held that the installation of a closed circuit camera would not constitutive monitoring in terms of this Bill. Such an installation would not be 'monitoring' in the strict sense of the word, but would simply be a security measure.

Adv de Lange found fault with Marshal International's second suggestion too. He said this was not the proper way to draft legislation. What one did was to specify which practices or acts were outlawed and everything that did not fall into this definition was not a crime.
Point 1(a)(vi) was rejected. On point 1(a)(v) Adv de Lange said that they had made a mistake in that the Bill dealt with the monitoring of information while marshal international was talking about the monitoring of activities.

On the submissions in point 1(b), submitted by MISA, FXI and SANEF (all media institutions) the Committee agreed as if this were not done then the Clause would be struck down as unconstitutional.

Ad SubClause (1)

Marshal International’s suggestion at point 2(a) would have the effect of giving the section wider application. Replacing the word 'confidential' with the word 'personal' would bring under the ambit of this Clause a much wider range of information. Mr Labuschagne however could not understand why someone would monitor an individual other than to obtain confidential information.

Adv de Lange said the task here would be to discover the meaning of the word 'confidential' in this context.
Mr Labuschagne pointed out that confidential information was information that you did not want the public to know, while personal information was information such as your home address, your telephone number, where you work and the like.

The next submission came from UUNet who suggested a change to Clause 2(1)(a) to provide "no person may - intentionally and without the knowledge or permission of the dispatcher or receiver". The Committee decided that it would first need to consider the consequence of such a change and the matter was flagged for later reconsideration. Adv de Lange noted that Clause 2(1) was a prohibition and this from this perspective it might be a good idea to include the words 'or receiver'.

Dr Delport felt that the whole section had been badly drafted and would thus require a complete redraft. One such consideration was the fact that the Clause did not take into consideration the fact that there might be only one party to the communication.

Ad SubClause (2)
Here SAPS was arguing that participant monitoring should also apply to the police force. Adv de Lange mentioned that in the US and Canada the police did have this power. The question was then whether or not the same position was wanted in South Africa. It should also be remembered that the Bill reads 'any person' a phrase which would include the police.

Mr Landers however raised the example of a police trap, a person whom the police use to trap a suspected criminal. Adv de Lange was of the opinion that police traps would not fall under the participant-monitoring Clause as individuals who could monitor in such a way. He stressed that under the Bill as it stood, the police were included under the participant-monitoring Clause, the question now was whether or not police should be allowed to monitor in this way or whether they should always be required to get judicial approval.

Ms Camerer's concern was that the police should have the same rights as the general public, but above this her concern was that the participant-monitoring clauses would create a market for devices and equipment that could be used to effect such monitoring.
Mr Labuschagne had looked to other jurisdictions for their take on this matter. He told the Committee some jurisdictions made it illegal to posses such equipment while other provided that one could own or posses such equipment if they were licensed.

Adv de Lange's point was that if the Bill contained participant-monitoring clauses it would then be inconsistent to completely outlaw the possession of equipment enabling individuals to do what they are legally allowed to. On the other side of this coin was the fact that it would be undesirable for the public to have such equipment. A balance between these two positions would have to be achieved.

Ms Camerer then put it to the Committee that it would be hard to establish what equipment would fall under this heading. The problem would stem from the fact that some of the equipment will have a number of uses only one of which would be use for monitoring.
Ms Chohan-Kota agreed that the word 'equipment' was very broad and therefore they would have to isolate those pieces of equipment that they did not want people to have. Adv de Lange said this could be done in which a list could be published, listing all the types of prohibited equipment. Mr Labuschagne pointed out that this was the practice in France.

Adv Masutha raised the concern of compound devices and other low-tech items which when used correctly could be used to monitor communications. The Committee resolved that this situation must also be taken care of.

Judicial Matters Amendment Bill
Adv de Lange asked for a progress report on the Judicial Matters Amendment Bill. After detailing the current status of the Bill, Mr De Lange alluded to the Correctional Services Amendment Bill, which had been discussed in a previous meeting and which the Correctional Services Committee sought to introduce. This Bill would provide that the Minister of Correctional Services, together with the Minister of Justice could amend or do away with bail in the event a prison got too full. This would include the amendment or withdrawal of conditions attached to bail. Mr de Lange told the Committee that he had learnt that the Correctional Services Committee would be going ahead with the amendment

A visibly disturbed Adv de Lange said this could not be done. Amendments such as those would give the Ministers powers which they just could not have in terms of the doctrine of the separation of powers. Adv de Lange said that he too had heard something on the matter and had learnt that they had obtained an opinion to the effect that such an amendment would be fine.
Mr de Lange confirmed that the Correctional Services Committee indeed did have an opinion to that effect. This opinion came from the State Law Advisor.

Adv de Lange said there were two problems with such a provision. The first was that the separation of powers doctrine was completely ignored. The second was that once these people were released through this mechanism, they were out of the legal system. The consequence would be that there was no mechanism to get them into court to appear on the day. The only way would be to issue another warrant of arrest then in addition to this, these people would have to be physically arrested again.

Adv de Lange said he was not concerned with what they did with sentenced prisoners as this was their realm. Unsentenced prisoners however fell under the scope of Justice and more specifically the courts. He added that Judge Fagan was happy with the manner in which the matter had been dealt with in the Judicial Matters Amendment Bill, and thus saw no reason for Correctional Services to continue with their present course of action. Adv de Lange said his biggest problem was with the fact that the provision would include the Minister of Justice in the process. This could not be done, and Adv de Lange said the Minster should first be asked if he wanted such a power or duty.

Despite the fact the he did not agree with the amendment, Mr de Lange pointed out, in their defence, that the Correctional Services Committee had made provision for the release of prisoners subject to the fact that they would have to appear before the court at a later date. The provision would provide that upon their release the accused will be served with a summons which will have on it a court date. In this way these people will be kept within the system. Mr de Lange conceded that legally the provision would overcome Adv de Lange's concern. Despite this there was a still a principled argument against this provision. Here Adv de Lange said another problem was created because under that provision they would be dictating to the courts how it would operate, when it would hear a particular matter.

In conclusion Adv de Lange said he did not care what legislation other Committees introduced, in this example however the Minster of Justice had been dragged into the matter. Adv de Lange added that to his knowledge the Minister of Justice did not approve of this amendment.

The meeting was adjourned

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