Constitution 13th Amd Bill: Negotiating Mandates; Regulation of Interception of Communications & Provision of Communication Rela

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.