Constitution 13th Amd Bill: Negotiating Mandates; Regulation of Interception of Communications & Provision of Communication Rela
NCOP Security and Justice
06 November 2007
Meeting Summary
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Meeting report
SECURITY AND CONSTITUTIONAL AFFAIRS
SELECT COMMITTEE
6 November 2007
CONSTITUTION 13TH AMENDMENT BILL: NEGOTIATING MANDATES; REGULATION OF
INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION RELATED
INFORMATION AMENDMENT BILL: DELIBERATIONS; REMOVAL OF MAGISTRATE FROM OFFICE
Chairperson: Kgoshi L Mokoena (ANC)
Documents handed out:
Negotiating
mandates on Constitution Thirteenth Amendment Bill, received from the
legislatures of:
Eastern Cape, Mpumulanga, Limpopo, Kwazulu Natal, Western Cape, Northern Cape,
Gauteng legislature
Regulation of
Interception of Communication and Provision of Communication related
Information (RICA) Amendment Bill [B9B-2006]
Regulation of
Interception of Communication and Provision of Communication related
Information Amendment Bill [B9A-2006]
Explanatory
Memorandum for NCOP Proposed Amendments to RICA Amendment Bill [B9C-2006]
Ministry of
Safety and Security submission on RICA Amendment Bill
University of
Johannesburg : Submission on RICA Amendment Bill
Audio
recording of meeting
SUMMARY
The Committee noted that a final letter had been served on Magistrate Mtyolo,
by service of the document under the door, noting that the document had been
removed by the following day, so the assumption was that he had received it.
The Committee decided to support his removal from office.
The Committee noted the negotiating mandates from provinces in respect of the
Constitution Thirteenth Amendment Bill. Eight provinces had indicated their
support and Free State would send through a final mandate. It was agreed that
the matter be finalised on 16 November, so that the final mandate of Kwazulu
Natal could be sent through.
The Committee heard further submissions on the Regulation of Interception and
Provision of Communication Related Information Amendment Bill. Proposed
amendments was tabled and explained; the purpose of the further amendments was
to clarify the information to be kept by network operators, to provide time
limits and to criminalise failure to follow the Act. There were no objections
to these proposals. The South African Police Service (SAPS) then commented on
the Bill, noting that it was the largest user of the legislation, in terms of
interception of communications, as well as use of detailed billing information.
SAPS commented that it did not think registration of the handset also was
necessary. The requirement to produce an ID document meant that the head of
child-headed households could not have a cellular phone without the
intervention of an adult. It suggested that service providers should keep IMEI mapping, or handset profiles for ten years. SAPS believed
the registration requirement for foreign visitors was too onerous. It suggested
that only theft, and not accidental loss or destruction of phones or SIM cards,
should be reported. The Department of Justice responded that similar
suggestions had already been submitted to the Portfolio Committee and were
taken into account. The Department maintained that it required the information
for purposes of evidence, and that the Department was attempting to close all
loopholes.
Questions were raised by Members around the tracing of SMS messages, the costs
to consumers, the difficulties around falsified ID documents, recovery of
stolen handsets or SIM cards, the danger of over-regulation on foreign
visitors, whether information was already available from the SAPS, and within
what time. Finally the mobile network operators
clarified points relating to roaming, what information SAPS could obtain,
correlation of information from various sources, counter measures taken by
organised crime syndicates, the importance of cell phones to child headed households,
and difficulties in verification. The Committee requested the Departments of
Justice and Safety and Security to meet to try to agree on some of the issues.
MINUTES
Magistrate Mtyolo: Removal from Office
The Chairperson noted that at the last meeting some Members had suggested that
time should be given to try to trace Mr Mtyolo. He had therefore signed a final
letter to Mr Mtyolo but no response had been given either to him, the Office of
the Minister, or the Magistrate's Commission. Mr Botha had tried to serve a
copy of the letter several times the previous week. Eventually he had served
the document by putting it under his door. On the next day he returned, and
found that the document had been removed. It therefore seemed that Mr Mtyolo
had received it. The Magistrate's Commission had decided on 29 October to
withhold his salary as from end of October. That report was tabled in
Parliament at the end of last week, and Parliament could still decide to change
that decision.
The Chairperson noted that the Committee was effectively back
in the same position. The recommendation was that Mr Majola be removed from
office, due to misconduct. The Chairperson thought that there was nothing
further to be done.
Ms F Nyanda (ANC, Mpumalanga) agreed that he should be removed from office.
Mr J le Roux (DA, Eastern Cape) agreed.
It was resolved that this recommendation would be conveyed by way of a
committee report.
Constitution Thirteenth Amendment Bill: Negotiating Mandates of Provinces
The Chairperson noted that the intention of this Bill was to formalise the
transfer of Matatiele to the Eastern Cape. All Members had briefed their
provinces in depth. Public hearings were held in Eastern Cape and Natal. He
said that written mandates had been received from seven provinces.
Mr le Roux noted that the Eastern Cape supported the Bill.
Mr D Worth (DA, Free State) said that the Free State would not be sending a
negotiating mandate, but would shortly send through its final mandate
supporting the Bill
The Chairperson read out the mandate of Gauteng, which had recommended support
of the Bill, noting that there was no necessity to hold public consultations in
Gauteng, as this had been done in the relevant provinces.
Mr B Ntuli (ANC, Kwazulu Natal) noted that the Kwazulu Natal legislature had
met on 1 November and had resolved to support the Amendment Bill.
Ms F Nyanda (ANC, Mpumalanga ) said that Mpumalanga
had given a mandate to vote in favour of the Bill.
The Chairperson indicated that the Northern Cape had indicated its support for
the Bill.
The Chairperson noted that North West was today being briefed, and was not yet
ready to submit its mandate.
Mr N Mack (ANC, Western Cape) said that his provincial parliament had resolved
to support the Bill, without any amendments.
The Chairperson said that Limpopo had resolved to support the Bill, without
amendments.
The Chairperson noted that all provinces that had submitted their mandates were
supporting the Bill. He suggested that provinces submit their final mandates by
14 November.
Mr Ntuli noted a request from Kwazulu Natal that the Committee's deliberations
take place only on 15 November, since Kwazulu Natal would be sitting only on
that day to finally debate this matter, and could submit the final mandate only
after that plenary session.
Having checked with the Department of Provincial and Local Government, the
Chairperson noted that Kwazulu Natal and the Eastern Cape had the right of veto
to this Bill.
All Members agreed that the Committee would only meet to finalise this matter
on 16 November. This would allow the necessary days before the sitting on 22
November.
Dr Petra Bouwer, Executive Manager: Compliance, Department of Provincial and
Local Government, noted that the Local Government and Administration Select
Committee would be considering the Cross Boundary Bill, which was
"twinned" with this one, and their scheduling would need to be taken
into account.
The Chairperson noted that the three-day rule did apply also to the NCOP. He would speak to the Chairperson of the
other Committee.
The Committee agreed to meet on 16 November to consider the final mandates of
the provinces, and take a final decision.
Regulation of Interception and Provision of Communication Related
Information Amendment Bill (RICA): Department of Justice, South African Police
Services and mobile service provider briefings
The Chairperson noted that some issues had been raised by service providers
during the last meeting, and Members had requested that the Department and the
service providers should try to meet to find a middle ground. That had not
taken place, but the inputs were however noted.
The Chairperson noted that he had received a letter from the Minister of Safety
and Security raising some concerns about certain provisions of the Bill, and
requesting amendments to some clauses.
Department of Justice (DOJ) comment and further amendments to RICA Bill
Mr Lawrence Bassett, Chief Director: Legislation, Department of Justice, noted
that there were some technical issues, which the Committee was being asked to
consider. These were based on concepts already in the Bill.
Mr Sarel Robbertse, State Law Advisor: Department of Justice distributed an
amended form of the Bill. The proposed amendments were indicated in bold. Some
oversights were being corrected. He went through the alterations as follows:
Definition of Customer
This was to be amended to put it beyond doubt that a customer was not only a
person to whom electronic services were given in kind, but also to an employee,
or any person who received service as a gift, reward or favour. This would do
away with the argument that a customer had to have bought the service.
Insertion of subsection (10) into Section 40 of the Act
As the Act currently read, mobile service operators were
required to keep their customer information indefinitely. This new provision
would clarify that they should keep the information for five years after a
customer had cancelled the contract, or after the electronic communication
service provider had ended the service. He pointed out that the Minister was
entitled to prescribe periods for the keeping of other information, and this
was generally between three and five years, so the DOJ considered a five-year
period to be consistent.
Amendment to Section 51(3A)(b)
Mr Robbertse noted that to ensure enforcement of section 40(10) there should be
criminalisation of the failure to comply, and a fine was therefore now
specified.
Amendment of Section 51(3D)
This was a technical amendment of the singular to the plural of the word
“provisions”.
Amendment of Section 62(6)(b)
This amendment would require information to be stored, similar to that required
by Sections 40(2) and (6)
Amendment to section 62B
A reference to section 62C must be inserted into section 62B relating to
obligations to comply with section 62C of the Act. The amendments proposed were
intended to mirror section 40 of the Act. This section had been redrafted. He
read out the section. These amendments would ensure that sufficient verified
particulars were available to identify and trace employees, even after they had
left the employer. It was directed at both small and large employers.
insertion of subsection (4) to Section 62C
This was mirroring section 40(7) of the Bill. A person renting a SIM card would
have to provide certain information to law enforcement agencies.
Insertion of subsection (5) to Section 62C
This mirrored section 40(8) of the Bill, and compelled
a juristic person who was renting out a cell phone to report any false
information that had been submitted for verification purposes.
South African Police Services (SAPS) comment
Dr Philip Jacobs, Head of Legal Services, South African Police Service (SAPS),
noted that the SAPS was the largest user of the Bill, in terms of interception
of communications, as well as use of detailed billing information. He cited
some cases in which extensive use of call information had been made
particularly in cash in transit heists.
SAPS and the Minister of Safety and Security had four main concerns. The first
related to the requirement for registration of both the handset and SIM card,
which SAPS did not think was necessary. The SIM card and handset could be
linked. As long as the SIM card was registered, that was sufficient for the
investigation.
Dr Jacobs noted that the requirement to produce an ID document meant that the
head of child-headed households could not have a cellular phone without the
intervention of an adult, because of having to acquire an identification
document.
He suggested, in regard to registration, that the service providers should keep
IMEI mapping, or handset profiles. This was a record of which SIM cards were
being used in a specific cell phone. The police would like the IMEI mapping to
be kept for ten years as investigations often took longer than five years.
In regard to the issue of foreigners being required to register their cell
phones on entry, the SAPS believed this would cause huge inconvenience at ports
of entry. Although he did accept that the Minister had the power to make an
exemption for major events such as the FIFA 2010 Cup, he believed that the
present volumes of visitors already would make this too onerous. Nowhere else
in the world, except Eritrea, was there such a requirement.
Dr Jacobs further suggested that only the theft of a phone or SIM card, or the
loss of a SIM card, (not accidental loss or destruction of a handset) should be
reported.
He noted that his input was based on his experience of crime investigation to
date and the type of cooperation SAPS had received from service providers.
Response of Department of Justice to SAPS comments
Mr Deon Rudman, Deputy Director General: Department of Justice, noted that
similar suggestions were submitted around six months ago. Other law enforcement
agencies, whom he listed, and which included the Office for Interception, had
also been asked for input, but at that stage they were not able to reach
unanimity on the amendments. The Portfolio Committee had noted all the comments
but had continued its deliberations on the Bill. These suggestions were similar
to those proposed by the mobile operators at that time, and were considered,
debated and rejected by the Portfolio Committee. That Committee had expressed
the view that the Executive should not be becoming involved in discussions on
amendments, because the Bill was now before Parliament. He was not sure what
the views of the other law enforcement agencies were at this stage and
suggested that perhaps they too should comment.
Ms Ina Botha, State Law Advisor: Department of Justice, noted that the
Department had made its position clear already. In regard to the information,
she reiterated that although SAPS might have the facility to track the
information, the DOJ was worried about the time this would take, and whether
the evidence would be admissible in court. In addition it was concerned about
the time delays. With regard to foreign visitors, the DOJ had already expressed
the view that if there was – as the Internet research had suggested – such a
thing as “pre-paid roaming services) then all information must be submitted by
foreign visitors. The Department still held that the handset details were
necessary, and again this was linked to proof of ownership of the cell phone,
as well as the SIM card, in Court. She pointed out that in the Rodrigues trial,
there had been a problem in that SMS messages were sent to an IMEI number, but
it could not be determined whose cell phone was sending the messages. She
accepted, in relation to minors, that there might be some inconvenience, but
the Department was trying to ensure that there was no loophole. The caregiver
or a relative could of course have the phone registered in their name.
In short, she summarised that the Department of Justice was essentially looking
at a different approach. It was not only aiming to be able to charge the
perpetrator but it was concerned about admissibility of evidence.
Mr Robbertse added that once a SIM card was used with the handset, there was a
link, but he pointed out that certain other services were rendered where the
IMEI number was not always available – of which the SMS was the best example.|
Mr Bassett noted that the mapping and the loss of the cell phone were not new
issues, but the Department would like to have another look at them.
Discussion
Mr le Roux noted that Dr Jacobs' comments had been noteworthy. However, it was
important to hear also what the other law enforcement agencies had to say. He
pointed out that another outstanding matter was the cost of implementation, and
asked whether SAPS’s suggestions would minimise the costs to consumer.
Mr Robbertse noted that these provisions were already in the RICA Act. The Bill
was trying to accommodate the cellular operators to make provision for a more
streamlined registration process. The costs would have been considered when the
Act was passed and there would not be further implications.
Dr F van Heerden (FF+, Free State) asked whether the comments of Prof de Koker
of Johannesburg University had been taken into account.
Ms Botha noted that the Department had only just seen the document and could
not comment in depth. However, on a cursory glance, he had raised many points
already considered. The issue of fraudulent ID documents had been discussed at
the Portfolio Committee, which had concluded that the possibility of fraud was
not in itself sufficient reason to delete the requirement that an ID number be
recorded. The newly tabled sections proposed that any false documents be
reported to the SAPS. The regulatory impact process accepted by Cabinet was
being implemented. She requested more time to respond more fully to the
questions by the University.
Mr Ntuli asked Dr Jacobs about the reporting of a stolen handset, and whether
the police would use the information recorded to find and recover the stolen
cell phone.
Ms Botha said that blacklisting was trying to combat the issue of theft. If a
theft was reported, the phone would be blacklisted and not allowed on the
system of the mobile operators.
Dr Jacobs said the most important way to curb thefts was to make a stolen cell
phone useless. Even without this legislation, there was already an agreement
with the mobile service providers to blacklist the phone. Some stolen phones
were of course taken out of the country, and so the Regional Police Chiefs
Organisation had agreed that the method of blacklisting would apply in the
neighbouring countries. Reporting was important for theft of both for the phone
and the SIM card. However, the only way to track it after it was stolen was if
detailed billing was used. If the phone was blacklisted it could not be used to
make calls and therefore not found.
Mr S Shiceka (ANC, Gauteng) commented that he did not have a problem with
having the comments of SAPS heard again, because the NCOP was of course a
different institution from the NA. Once the Bill was with the NCOP it was
within its ambit to call upon anyone again. He would have liked to see the law
enforcement agencies being able to reach agreement around these matters. SAPS
believed the registration of the handset was superfluous. However, if there was
no harm in it, and DOJ would require registration for cogent reasons, he could
see no reason not to register the handsets as well. The objective was clearly
to close all loopholes in dealing with crime..
Dr Jacobs responded that there was a need to be realistic, and noted that there
was no legal presumption that a cell phone would always be used by the owner.
It would always remain a question of fact who was
using it to make any call. SMSs could not be proved because no voice analysis
was possible.
Mr Shiceka stressed again that the law should be tight. If exceptions were
allowed, criminals would use that loophole. All children should have a relative
somewhere. He believed that everyone should be registered to ensure that the
loopholes were being closed.
Mr Shiceka agreed that if a cell phone was broken, or the SIM card was no
longer in operation, there was no need to report this as there was then no fear
of the phone or SIM card being used. However, if it was lost, he thought it
should be reported, as it could still be found and used. He wondered if the
SAPS had the capacity to deal with the issues. He enquired if stolen cell
phones would be put on a system similar to stolen vehicles.
Ms Botha suggested that this could perhaps be dealt with later by way of
Section 40(1).
Mr Shiceka asked for further advice In respect of roaming. He made the point
that South Africa was more
internationally competitive and attractive to foreign investors.
However, there were complaints about over-regulation, and he would like the
DOJ’s comments. He felt that ease of access to foreigners must be balanced
carefully against the need to lessen crime. The country had taken a view to try
to eliminate queues; for instance on the Social Grants, where alternatives were
now available.
Mr Worth noted that the SAPS were already in the position to obtain the details
of foreign users without a formal registration process. He was of the opinion
that this capacity could be further enhanced by providing in the Bill that, for
instance, details of the communication data should be available within a period
of twelve hours of the IMEI becoming active. He asked whether this was
possible.
Ms Botha said there might well be a way to get the information. The Department
of Justice was concerned as to how quickly it would be received, whether this
information could also be found in respect of "pre-paid roaming
cards" (if they did exist), and whether it related only to call data or
the personal information. She asked also if the information was linked to all
countries.
The Chairperson noted that the Minister had said that the information was
available. He ruled that no further questions should be asked in this meeting
as to whether this was correct or how far it extended.
Dr van Heerden asked whether a person "speaking" through a computer
to another would be susceptible to interception.
Mr Robbertse responded that the Act made provision already for interception of
all kinds of communication, including computers. Certainly e-mail could be
intercepted.
Ms Botha reminded the Committee that the Bill was only dealing with those parts
of the principal Act that related to mobile operators. The Act already set out
an entire process for interception, and provided for interception centres.
Mr M Mzizi (IFP, Gauteng) said that people were tending to do away with
cellphones and revert to laptops. He asked if there was a number in that
computer that would identify the user.
Dr Jacobs responded that if the computer was used with a fixed line, the caller
number was the identity.
Comments of mobile service providers
The Chairperson asked the representatives of the service providers, who were
present at the meeting, to respond to the concerns.
Mr Patamile Pongwana, Managing Executive, Regulatory Affairs, Vodacom said that
the comments of SAPS were correct. Call data records did not mean the
interception of a conversation but would give details of who called what number
using which phone at a particular time. He stressed again that roaming was an
agreement between two networks, not individual subscribers. Those who roamed
would indicate to the network in their own country that they would like to be
activated for roaming in the country to be visited. If there was a signal, they
would be linked immediately on landing in the new country. If two mobile
operators had a agreement with Cell-tech, the Cell
tech subscriber would be able to log on to either network, and the record of
his call would be available from the network he was using. The information
would be available immediately it was requested.
In relation to caller profiles, he noted that no legislation could ever close
every loophole. The correlation of activities was possible through various law
enforcement agencies. In relation to theft of cell phones, he commented that
sometimes it was preferable not to black list the phones, but rather to listen
in, over time, to the conversations. This was done through a combination of
agencies, and the people who were used as networks would cooperate to allow
tracking. He stressed that different interception directives did apply for
different technology.
Additionally he pointed out that, especially in regard to organised crime,
counter measures were available. Cryptography could be loaded into a cell phone
to encrypt all conversation and that was another problem to be contended with.
He noted that the IMEI number of a phone could be linked to a computer and
simply changed. Skype was being loaded on cellphones, and this of course
bypassed the network operators. These were all realities. The combination of
what all law enforcement agencies were doing would cooperate to create an
environment to attack the problems from several fronts. He would prefer to see
cooperation rather than onerous requirements.
In respect of child-headed families, he commented that, desirable as it may be,
the registration process was a nightmare. Issues were raised in the NA about
who had IDs. He pointed out that he had purchased a phone for use by his
14-year old son. He was taking the risk that his son would not be using the
phone for criminal behaviour. Of course, if it was stolen, then it must be
blacklisted. The issue of evidence, linked to addresses, was a problem already
since out of 11 million households, less than 2 million had addresses. The
Department was trying to address all possibilities. Some children would clearly
have to rely on relatives. However, he pointed out that the opening up of
mobile possibilities meant that most people in South Africa now were able to
make a voice call, thus eliminating the digital divide in so far as phones were
concerned. The registration process, he feared, would reverse this situation.
He said that this would have to be balanced against the percentage of
criminals, and warned that emphasis should rather be placed on targeting the
real criminals, rather than criminalizing the network operators if they were
unable to comply.
Ms Louina Nunan, Senior Legal and Regulatory Advisor, MTN, noted that the
customers at the moment included pre-paid and contract customers. MTN did store
information. Network service providers could police the information only to the
extent that the contracts allowed it. It could not police the documentation
that a corporate would keep; this was not the obligation of the network
providers. Insofar as verification was concerned, this was difficult to
implement, because the person doing the verification was not necessarily an
expert, but could be a salesperson in an Edgars store.
In relation to minors, there was other legislation to be taken into account,
and other practicalities. She thought the need for access to cellphones must be
balanced against other considerations.
Ms Leona Mentz, Senior Manager: CellC, noted that most issues had been covered already. CellC again
wished to raise the issue of roaming and the impact on business. There were
roaming agreements with 395 networks and a policy decision needed to be taken
either to allow all or no international roaming. Visitors could not be switched
on and off individually. Finally, she noted that an SMS could be generated from
a laptop or cell phone and there was no way to distinguish where it had
originated. SMSs could also be generated from several websites, or wireless
networks.
The Chairperson thought that the two Departments represented here today must
meet, and try to reach agreement on the disputed issues.
Mr Mack pointed out that if the storage of information was extended to ten
years, there would no doubt be cost implications. He would be interested to
know what the financial implications would be.
Mr Mzizi asked if, in buying a cell phone for his child, he would be able to
use the ID number that appeared on his child's birth certificate.
Mr Robbertse said that this was not allowed. There must be matching of a full
ID book with a photograph to the information, and this was defined already in
the Act.
The Committee would be considering the matter again at its next meeting, with a
view to finalising this Bill.
The meeting was adjourned.
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