Regulation of Interception of Communications & Provision of Communication Related Information Amendment Bill: deliberations

Meeting report

JUSTICE PORTFOLIO COMMITTEE
15 June 2007
REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION RELATED INFORMATION AMENDMENT BILL: DELIBERATIONS

Chairperson: Ms F Chohan-Khota (ANC)

Documents handed out:
Updated draft of Bill as of 15 June 2007
Regulation of Interception of Communications and Provision of Communication-related Information Amendment Bill [B9-2006]

Audio Recordings of the meeting

SUMMARY
The State Law Advisors presented a new draft of the Bill to the Committee. The latest draft still contained a number of options for each clause, but it was indicated that the drafts had been revised in some cases. Only the latest amendments appeared in grey shading. The definition of “activate” in Clause 1 had been changed by making reference all to “activated”. The address of “address” was discussed, and it was agreed that the word “area” be used instead of “settlement” and that the definition make it clear that an informal settlement could be in either a rural or urban area, where there were no formal physical addresses or street particulars. The correlating provisions in the Financial Intelligence Centre Act would be checked. The definition of “customer” included provision for past customers, but the State Law Advisors would check the wording again to see if it could be simplified without reference to specific sections. They would also check to see if it was necessary to include both subparagraphs and change the order of the wording.

Clause 2, referring to the amendment of Section 40(2),had been amended to make reference to authorised representatives of juristic persons. The date of registration was not necessary and should be deleted from all options so that only the registration number of juristic persons be included. The words in the new Section 40(3)(b)(iii) had been clarified to refer to existing long term documentation. The amendments to Sections 40(5) and 40(6) were now listed separately. Option 1 was comprehensive. The periods of imprisonment in Clause 3, amending Section 51(3C) had been altered to twelve months. The wording of Clause 4, dealing with the new Sections 56 had been altered to include revoking of licences. The Committee discussed the regulations on the security of systems, and noted that these provisions were essential to the proper working of the Act. Reference would be made in Section 56 to contraventions of Sections 40(2), (3) (4) (7) and possibly (8).  The Chairperson thought it might still be necessary to include a new clause on confidentiality of information provided under Section 39, but that the regulations under Section 42 must be provided. All options in Section 40 must be mirrored in Section 62. The drafters would check with the Department of Social Development what information was contained in the grant registers, as this might be useful in attempting to define “family member”. A new draft would be considered on Tuesday 19 June.

MINUTES
Mr Sarel Robbertse, State Law Advisor, Department of Justice, noted that some further amendments had been made to the wording of the options in the Bill. The draft had also been “cleaned up” so that only the latest amendments were now shown, in grey shadowing

Clause 1: definition of "activate
Mr Robbertse noted that the phrase “and activated has a corresponding meaning” was inserted at the end of the definition of “activate”. The word "activated" was used in Clause 42.

Clause 1: definition of "address" (P.3)
Mr Robbertse said that the phrase "an informal settlement" was inserted to qualify that the provisions of the clauses would relate to both rural and urban areas. If any person could not provide a street address he could give the address of a church or store or other place that he might collect his mail.

The Chairperson asked that "a person" be amended to "such person". Mr Robbertse agreed that this would be done.

He indicated that there was a definition of "informal settlement" (which appeared on page 9), which said that this, for the purposes of the Bill, was a place with no physical address or street particulars.

The Chairperson asked why the Bill did not say that an informal settlement would be a place in either an urban or rural area. She indicated that a person should not be permitted to give the address of a store or church in places where there were street addresses.

She suggested that the definition should be something along the lines of " a settlement in an urban or rural area where people live"  (as opposed to use for residential purposes, which would tend to imply that the land was legally used for residence) "and in respect of which no physical addresses or street particulars are available". Then the definition of address should match up, by indicating that an address would include a place "where a person resides in an informal area".

The Chairperson then, on reconsideration, wondered if “area” was not preferable to “settlement” because "settlement" would connote a number of people living in close proximity. In rural areas the individual homes could be quite isolated from each other.

Ms Ina Botha, State Law Advisor, Department of Justice, noted that in existing legislation the phrase "informal area" was used. An area was a geographical area.

Imam Solomon wondered if the wording should be "where a person resides in a rural or an informal area"

The Chairperson thought that this would not necessarily include all the areas that it was sought to define. She reiterated that "settlement" must be replaced by "area". Informal area should therefore be defined as "a place in an urban or rural setting used for residential purposes, and in respect of which no physical addresses or street addresses are officially assigned". Then the necessary changes should also be made to the definition of “address”.

Ms Botha noted that the new concept of "rural setting" was introduced. She asked if it should be defined.

The Chairperson did not think this was necessary.

Mr L Landers (ANC) asked how the issue of informal settlements had been dealt with when the Committee dealt with the Financial Intelligence Centre Act (FICA).

Ms Botha said that certain people were exempted.

The Chairperson thought that this had been dealt with, but agreed that the difference was that FICA could deal with exemptions. She seemed to recall that a document was included in the papers forwarded to the Committee. She was happy with what had been decided in this meeting.

Clause 1: Definition of “customer”
Mr Robbertse noted that paragraph (a)(ii) of this definition now stated that if a person was a customer for the purposes of Section 39(3) he would be regarded as a customer. The law enforcement agencies would be able, at the moment, to obtain details of the present customer for the purposes of making an interception. Now the definition provided that the law enforcement agencies could obtain past customers' details as well. This definition would have a bearing on all  sections which referred to obtaining customer details, whether those customers had a current or an old contract with the telecommunications service provider (TSP), either in terms of the new Section 62 or the new Section 40.

The Chairperson asked why this had to refer to Section 39.

Ms Botha noted that the word "customer" appeared in many places. Therefore it was very important to note in respect of which sections the definition was being broadened. If the Committee felt that it should be broadened throughout the Act then a proper search would have to be done and each section would have to be amended where appropriate.

The Chairperson suggested that for the time being this should be left as drafted, but she asked the drafters to look at it again to see if it could be simplified by using words such as "and includes any person who previously had a registered contract."

The Chairperson asked why it was necessary to have both paragraphs (a) and (b) in the Act, and whether they should not be incorporated together. Whether a person had a prepaid or a contract arrangement, there would be a service provider. This would not appear to include a person who had signed a contract but whose system was not yet activated. She further noted that the position of subparagraph (ii) was incorrect: as presently placed, it appeared only to relate to paragraph (a) and therefore to exclude those mentioned under (b). It was intended to cover every customer.

Ms Botha was not sure why the original definition was worded in this way.

Imam Solomon (ANC) asked for clarity. He wondered if (b) would refer to those who had not yet had their service activated.

Mr Landers indicated that (b) was already in the Act.

The Chairperson agreed, but thought that if it did not make sense then perhaps it should be amended.

Clause 2: Amendment to Section 40(2) (P 10 – 12)
Mr Robbertse noted that the details in subparagraph (f) had been added to Options 1 and 2, to make reference to the authorised representative of juristic persons.

The Chairperson wondered if there should not be reference to "and, where applicable, the address..."

Mr Robbertse thought that in all instances the address must be given and therefore it was not necessary to state this. The juristic person would have a fixed address.

The Chairperson agreed that he was correct.

The Chairperson asked if there was still a need for the date of registration.

Ms Botha answered that if there was any problem with the registration number, such as an incorrect digit having been recorded, then the date of registration would still allow the particulars to be obtained.

The Chairperson pointed out that the details of the authorised representative would always be available. She suggested that the date of registration must be taken out. This would apply to all options where the date of registration was included. Ms Botha agreed that this would be done.

Clause 2: Amendment to the new Section 40 (3)(b)(iii): Option 6 (P 16)
Mr Robbertse indicated that the Committee had requested insertion of words to clarify the references to longer-term documents that could be used as proof of address. He therefore pointed out that the redrafted option referred now to "an existing lease"," a current television licence" and “a new motor vehicle licence document"

In the following subparagraph (iv) Mr Robbertse explained that a letter of authority or an affidavit could be used to verify the authority of the representative of the juristic person

Clause 2: Amendments to Section 40(5) and (6) of the Bill: Options on Page 18 - 19
Mr Robbertse noted that the previous Option 3 of the Bill had been split up to make it into two provisions: 5(a) was renumbered as subclause 5 and 5(b) was renumbered as subclause 6.

The various options were now listed under each of the separate subclauses. Subclause 5 related to the obligations of the owner and subclause 6 to the obligations of the TSP

The Chairperson referred to Option 1 of subclause (6), noting that this was quite comprehensive and contained full references to the TSP. Because of this she thought that the words underlined as the first sentence of subclause (6), on the third line of P 19, could therefore be removed.

The Chairperson said that the current Option 1 was far more comprehensive. Not a great deal turned on it and all concepts seemed to have been captured.

Clause 3: Amendment of Section 51 (3C) of the Act: Options on page 22
Mr Robbertse indicated that the original period in the Bill was three-months imprisonment. In both Section 51(3C) options, the period of twelve months had been inserted.

The Chairperson noted that numerals were usually used for the periods in drafting legislation, but the current drafting included the word “twelve” She suggested this be rectified.

Clause 4: Amendment of Section 56 of the Act: (Page 22-23)
Mr Robbertse noted that the Committee had asked for consideration of the possible revoking of the licences under section 56. The new wording catered for this. The current Act provided that contravention of Section 34 was criminalised. If a TSP failed to purchase the necessary devices to intercept and store communication, he would be guilty of an offence.

The Chairperson asked about the regulations that allowed the Minister to proclaim on the security of the system, and pointed out that there was reference to criminalisation in that wording.

Mr Robbertse said that there was a problem relating to the security standards, and the failure to comply with security standards was not criminalised by the Act. He thought that perhaps provision should be made for that.

The Chairperson agreed. If the systems were not secure nor complying with regulations that may be promulgated then there was no point to the rest of the legislation.

Mr Robbertse noted that the wording had been taken from Section 56, and the two scenarios had been split into sub-paragraphs (a) and (b). A new sub-paragraph (c) would also be added to make reference to Sections 40 (5), (6), (7) and (8). He mentioned that reference to section 40(8) was possibly not required, as this dealt with transfer of cellular phones, but this could be discussed later.

The Chairperson noted that there would then be two batches of regulations; one to deal with security of the system and one relating to the confidentiality.

Mr Robbertse noted that Option 2 now included the words "notwithstanding Section 40(1)".

The Chairperson wondered why this phrase did not appear immediately before subparagraph (a), because in its present place it did not make sense, as it appeared only to relate to (b). She asked that the position of these words be altered.

The Chairperson noted, in relation to sub-paragraph (c) that it was no longer necessary to include the references to sections 40(5), and 40(6). She was satisfied that the remainder of the references must be retained in sub-paragraph (c). The references to Sections 40(2), 40(3) and 40(4) must be retained in subparagraph (b)

Confidentiality
Ms Botha noted that the Committee had asked the drafters to check on confidentiality. Section 42 of the Act contained a prohibition on disclosure of information. Section 42(2) said that no postal service provider, TSP or other providers may disclose any information that was obtained during the course of his or her work. Employees were also prohibited already by the Act.

The Chairperson asked if there was a sanction.

Mr Robbertse noted that there was a serious sanction of a heavy fine (R2 million or 10 years imprisonment) for employees or service providers.

The Chairperson still believed that it was necessary to have another clause. She pointed out that the Section 39 request must be made to designated individuals, not to any person in the TSP. Therefore there was a need to have a clause to say that such a person must be designated, and that the request must be made to the designated person only.

Mr Robbertse indicated that stringent security requirements had already been set, and he thought that there was reference to designated people. The security requirements were conveyed by the Minister of Communications to TSPs, and related to security of information and applications in general, including the applicability of certain international documentation, and some other matters that he could not recall precisely at the moment. He said he could make copies available.

The Chairperson agreed that the dissemination of the information was contained in Section 42, but there was no specific reference to the Section 39 scenario, although it was possible that the new Section 40(2) might cover Section 39 also. The same applied to the section where the Minister had been given the power to make regulations. If something went wrong, then the Minister should be able to stipulate certain guidelines and requirements. She would like to see those regulations, and would still think that there may be a need to specify exactly what the position must be with regard to the Section 39 requests.

Correlation of Section 40 and Section 62
The Chairperson asked that the all the options in Section 40 be mirrored in Section 62. That would make it easier for the Committee to check that the same features applied to new registrations and registrations of existing contracts.

Identity documents / family members
The Chairperson asked that the drafters must check with Social Development officers about what records they might have for social grants. In seeking to define “family members” and to identify young people who might not qualify for ID documents, certain points had been raised by the Committee. There was a suggestion that the identity or address might be covered by those of "family members". Some Members raised the issue that some children did not have parents. It was then sought to include passport numbers as a form of identity. This was still cumbersome. It was felt that the drafters should try to incorporate a category that referred to data that was held in registers by the Department of Social Development, and this might include addresses, ID numbers, and information relating to grants. Grants were paid to designated caregivers. It would be interesting to see how they were defined in the grant legislation. One way to cover this might be to define a family member as including a caregiver, or to define a family member by reference to these registers.

A new draft would be considered on Tuesday 19 June.

The meeting was adjourned.