Interception and Monitoring Bill: deliberations

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Justice and Correctional Services

03 October 2001
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Meeting Summary

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Meeting report

 

Justice and Constitutional Development Portfolio Committee
4 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
This meeting concerned the consideration of submissions relating to the Interception and Monitoring Bill. This summary of submissions is available on the PMG website.
Clause 7 was particularly problematic from the perspective of construction. To remedy this the Subclauses were rearranged to provide a more easily read section.

MINUTES
Clause 6: General
Under point 1(b) the Committee considered UUNet’s submission that the reference to "or any other person" should be removed. This was identified as a concern already raised. Mr Labuschagne was thus in the process of evaluating that provision.

Ad Subclause (1)
UUNet, in point 2(a)(i) raised the concern of civil suits being brought against Service providers for the supply of information to the authorities. Adv de Lange pointed out that this was not possible. An action, particularly a civil claim, could not be brought against anyone in relation to an action taken in terms of a court order.

In relation to point 2(a)(ii) it was felt that the point being made there was of no real substance other than the inclusion of the phrase " any assistance". This was noted and the drafter was directed to include this phrase in the wording of the provision.

Point 2(b)(i) raised by the Internet Service Providers’ Association (ISPA) was felt to be inappropriately placed. The Committee felt that this concern should properly have been raised under Clause 7. ISPA’s second concern would be remedied by an exemption that could be applied for.

Ad Subclause (3)
Here Adv de Lange pointed out that the concern raised by UUNet, at point 3(a)(i) should have been brought under Clause 7. Mr Labuschagne said that the reason why these matters were being raised here was because Clause 6 dealt with the remuneration of service providers for certain costs incurred.

The next submission was that of the National Directorate of Public Prosecutions, which Mr Labuschagne thought was good. Adv de Lange disagreed. In his view such a provision would create the strange situation where the head of the Directorate would have to speak to the Accounting Officer. This should not be done, as the decision should either be taken by the head of the Directorate or the accounting officer. Legislation like this would provide that the Director of the Scorpions must consult with the Head of the Scorpions.

Ms F I Chohan-Kota suggested that a standardised tariff be used. Adv de Lange felt that there was merit to this suggestion, adding that this tariff could then be published in the Government Gazette. If this were the case then Subclause (3) would then be removed, with the tariff being established through the mechanism mentioned in that Subclause, by the Minster of Justice in consultation with the Minister of Finance.

Mr Labuschagne recalled that Subclause (3) provided that the amount would be established through consultation between the Minister of Finance and the Minister of Communications, and not the Minister of Justice as Adv de Lange had mentioned. Adv de Lange replied that it should be the Minister of Justice because he was closer to the law enforcement agencies. The Minister of Communication was there to provide a balance. This balance was indeed important but this is why the Minister of Finance was included in the process.

Mr Labuschagne said that as the Minister of Justice was there to represent the interests of the law enforcement agencies, so the Minister of Communications was there to represent the interests of the service providers. The Minister of Communications was closer to the service providers and would thus represent their interests in the determination of the tariff. Adv de Lange said the remedy to this problem would be to include a mechanism in the legislation which provided for service providers to voice their concerns.

Ad Subclause (4)
Mr Labuschagne explained that Subclause (4) was in place to make it clear that the cost incurred in the initial process of making any systems ‘interceptable’, could not be passed. This provision was basically to provide that costs placed on the service provider in the legislation were not passed on or alienated in any way.

Adv de Lange said that if this was true then he was concerned about the provision relating to "leasing of equipment". On a reading of the Subclause a service provider could make the state bear costs it should not, simply by leasing its equipment.
Mr Labuschagne pointed out that this leasing would pertain to the leasing of ordinary telecommunication equipment and not monitoring equipment. This would include telephone lines and other costs such as those ordinarily borne by consumers.

Adv de Lange expressed concern relating to Subclause (4) as a whole. It provided that the remuneration in Subclauses (2) and (3) was "in respect of direct costs incurred in respect of personnel and administration…" It could be interpreted as widely as being an offer of remuneration for the entire staff and administration of the service provider . But in fact it only related to personnel and administration as far as it related to the interception or other provision of information.
Mr Labuschagne said the section would possibly require a redraft.

Mr M Mzizi (IFP) then pointed out that Telkom was asking for a witness fee. Here Adv de Lange ignored Telkom’s request because witnesses were in effect already entitled to a witness fee. This provision was however accommodated in another Act and had no place in the present Bill.

Clause 6
UUNet proposed a new Subclause for Clause 6, to provide that remuneration would apply mutatis mutandis to the actual capital costs, including investments, technical and maintenance costs, incurred by service providers in establishing monitoring devices and other facilities and equipment installed by service providers pursuant to the Bill. Adv de Lange again reiterated if those wanting a provision such as this were able to show another jurisdiction in the world where this cost was placed on the state then the Committee would seriously consider it. Adv de Lange did however mention that for small Internet service providers (ISP’s) there would be the possibility of an exemption. The fact that South Africa was giving small ISP’s an exemption where they could not afford to pay meant that we were acting a little different to other jurisdictions where such an exemption was largely non-existent.

Clause 7
Clause 7 is the most contentious Clause in the Bill because it places the onus on service providers to make their services, whether they be fixed line, cellular or internet, interceptable at their own cost. Throughout the proceedings in considering the Bill there have been voices calling for this cost to be borne by the State and not the service providers. Their argument is that the associated costs are too great and will cripple the industries and cause smaller service providers, particularly in the context of the Internet, to go out of business. In answer to their pleas, Adv de Lange has always asked to be given an example of another jurisdiction where the initial costs of making the infrastructure interceptable has not been borne by the service provider.

Ms Chohan-Kota had difficulty with Subclause (4). Subclause (4) referred back to Subclause (1), which was a prohibitive Clause. She said she failed to appreciate what these two Subclauses provided for when read together. She also failed to see why, in Subclause (4), the Minister of Communications could seek to voice his will through directives instead of regulations. Surely regulations would have been better in this context?
Adv de Lange added that he could not quite understand why there was a reference to directives instead of regulations.
Mr Labuschagne thought that the intention was to provide that the Minister of Communications could direct what steps were to be taken by service providers to render their networks interceptable.

In Adv de Lange’s opinion, regardless of the intention, the Clause had been constructed badly. Clause 7(5)(a) referred back to Subclause (4)(a) and Subclause (4)(a) then referred back to Subclause (1). To remedy this, Adv de Lange recommended that Subclause (4) become Subclause (2), Subclause (5) become Subclause (3), Subclause (2) become Subclause (4) and that Subclause (3) become Subclause (5). After this had been done, a Subclause should also be inserted to allow for the exemption allowed for small ISP’s.

Ms Chohan-Kota then raised the point that perhaps the section should expressly provide for the period mentioned in Clause 7(4)(b). In the absence of an express provision then surely the service providers would not be obliged to do anything.

Mr Labuschagne pointed out that in Clause 7(2) it said "…and within the period, if any," and then in Clause 7(4)(b) it provided that the Minister "may" determine such a period. The provision of a time period within which to comply with directives was thus not an obligation but a discretion, so the obligation on service providers would apply even without a period within which to do it.

Adv de Lange reiterated that these directives were provided for so that service providers could make their systems interceptable in the manner that the state wanted them to. Without directives at the very beginning it was definite possibility that service providers would acquire the wrong type of equipment. For this reason it would be better for those directives to exist from the very beginning.

Dr Delport commented that the intention was to formulate the legislation so the cost fell on the service providers and not the Government. The reality of the situation was that the equipment that would need to be acquired would qualify as tax deductions. In this manner, through a reduction in tax payable, the State would still indirectly be baring some of the costs associated with the legislation.

Ms Camerer had two concerns. These were firstly that the NIA said some of the processes involved could not be executed . She asked what these processes were, and asked if a feasibility study had been done. The information that was needed was whether having these systems in place would yield a result that would justify the cost and hard work. Second was the contention that the legislation would slow the advance of technology, especially communications technology. This argument was forwarded in the initial discussion, where a member of the public argued that the advance of technology would be slowed due to the added cost and difficulty associated with now having to ensure that new technology is interceptable.

Adv de Lange responded to this second concern saying that he had asked people making this statement to give him concrete proof. Their reply was always that this had taken place in Holland. Besides this unfounded statement nobody has been able to present concrete, empirical evidence that this has happened in the past. Adv de Lange conceded that it might or might not have impeded the advance of science, but in the absence of concrete evidence he would not formally entertain the notion.

Ms Chohan-Kota then returned to the earlier discussion revolving around the problematic construction of Clause 7. She identified two concepts in Clause 7 that could be separated to make it easier to reconcile the problem. The first concept was the initial requirement that all communication services must be interceptable and the second concept was that the Minister could issue directives thereafter. It would be better to provide that there was a prohibition providing that no communication services could be provided unless the communications were interceptable. This had to be done in a manner specified by the Minister and within a period of three months, for example, from the commencement of the Act. After this the Minister may issue directives relating to those areas enumerated in Clause 7(5) which would have to be complied with, with in a period specified by the Minister. The exemption that could be given to smaller ISP’s would then only be available in respect of the directives passed afterwards by the Minster.

Mr Labuschagne pointed out that, as it stood the general directives would in terms of Subclause (4) be determined after consultation with the service provider concerned. This would mean that the directives would be constructed tailored to each service provider’s position. Adv de Lange said that this was surely wrong. The initial directives, to be capable of being intercepted in the manner prescribed the Minister, was a general obligation and this would be applicable to all service providers in one standard form. The second set of directives could however be constructed after consultation with the service providers.

Clause 8
The South African Human Rights Committee submitted that the priority that would be given to the establishment of central monitoring in terms of this Clause, still needed further debate. They said that the Government’s inability thus far to commit resources to the implementation of rights-based legislation must be highlighted within the context of this new legislation which makes further demands of the Government’s fiscal capacity. The Committee noted that these central monitoring centers had already been established and could thus not place these extra burdens on the Government.

Clause 9

Adv de Lange was of the opinion that Clause 9 was drafted completely wrong. This Clause relates to historic or archived call-related information more and not on-going call-related information. This Clause would be redrafted to include a Section 205 (of the Criminal Procedure Act) type procedure. This would not be an actual Section 205 procedure but a similar one, completely contained within this Bill, with a similar procedure requiring a court process.
Adv de Lange reminded that another aspect of these applications was that one could bring numerous kinds of application at the same time. This was allowed as it would be possible to get a warrant giving access to call content but not call-related information. This was because there was the requirement that the information be necessary and that there should be no other reasonable way to get the required information.

Adv de Lange told the Committee that Judge Gordon had said that he did not want too many requests for historic call-related information. To this end a number of different procedures had been created. There was an application for historic information, for historic and ongoing information and one for ongoing information.

Mr S N Swart (ACDP) asked what rank a police official would have to be in order to apply for such a warrant. This question was asked against the backdrop of corruption and the before mentioned situation where Section 205 warrants are abused. The general consensus was that the officer concerned would have to be at least a sergeant.

Adv de Lange told the Committee that in addition to this it would be necessary to create serious offences relating to the abuse of warrants and other such police powers. This was the position in the United States where it is a very serious offence to seek a warrant for improper purposes. Extremely high sentences are imposed for those who abuse this power.
Mr Labuschagne was of the opinion that the level of officer initially decided on in the Bill should be adhered to.

Adv de Lange then raised the point that in practice it would not be these officers, of advanced rank, that would physically sit and tap the phones. The provision therefore obviously provided that it was these officer that could grant other officers leave to apply for the warrants.

Clause 10
The GCB’s request for a reasonableness requirement was recognized by the Committee.
Mr Labuschagne then pointed out that Clause 10 governed the situation where a directive had already been granted. This was probably the reason why there was no reasonableness test. Adv de Lange identified that if this were true, then the Clause should not contain a ‘notwithstanding’ element and should instead provide expressly that it applies when ‘a directive has been granted".
The GCB’s submission was held to be incorrect.

Clause 11
Mr Labuschagne told the Committee he had encountered a sizeable problem with this clause, which deals with the Information to be obtained and kept by service providers. Mr Labuschagne said he identified the need for the information but unfortunately it would be exceedingly difficult to find a middle way to deal with the situation.

The Clause deals with the information that a service provider must obtain before it can enter into a contract with a customer. This information relates to the identity of the customer and is required so that it may be determined who owns and operates an account. The problems are numerous and are specific to each sector of the communications industry. In the context of cellular communications, the problems are that service providers do not sell anything to the public, instead vendors sell these items to the customers. Secondly, there a presently over five million South Africans who own cellular phones operated on a pre-paid basis and the cellular companies who sold them their phone, have no identity information on these users. In relation to the Internet there is the problem not of pre-paid services but free services.

One of the possible solutions would be to make it impossible for any cellular communication package, excluding airtime, to be sold without the recording of identity information. This would hold true for even the street vendor who sells cellular phones. The problem is that this might not be very practical or even possible at all. Adv de Lange then said that he had never known anything to start working perfectly from the very beginning. Despite the initial impracticalities, the aim of the Committee was to put in place building blocks for future effective control, and at present, to limit the scope for criminality as best it could.

The meeting was adjourned.

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