SUBMISSION IN TERMS OF REGULATION AND INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION-RELATED INFORMATION AMENDMENT BILL [B9-2006]

Written Representation to the Department of Justice Committee on the Regulation of Interception of Communications and Provision of Communication Related Information Amendment Bill (B9-2006)

1. Representative body
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Cape Town Regional Chamber of Commerce and Industry
.
2. Correspondence Address
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Please address all future correspondence on this Submission to:
Mary Jean Johnson
PO Box 204
Cape Town
South Africa
8000

Email: mj@capechamber.co.za
Tel no: 021 402-4300
Fax no: 021 402-4302

3. Nature of business conducted
-
The Chamber has over 4500 member companies and is the largest Chamber in South
Africa.

4. Contact Person
- Mary Jean Johnson
Business Information Officer

Introduction

Cellphone registration

The proposed Regulation of Interception of Communications and Provision of Communication Related Information Act (Act 70 of 2002) (RICA), was promulgated in 2002, but some sections have not yet come into operation, for example the registration of the details of cellphone owners. This is due to come into force on June 30 2006.

Among the reasons given for RICA was that monitoring of cellphone ownership was considered essential for the fight against crime.

There are a number of facets that are of concern. These include the manner in which the legislation is drafted, the collection and verification of information on subscribers, the penalties for non-compliance, the costs and the unintended results.

Collection and verification of details of subscribers

As many of the users of cellphones live in informal settlements and are themselves mobile, enforcement is difficult. One of the problems of those who move often, especially where there are fires or high levels of crime, is the access to identity documents. This means the provision of business and residential addresses is not always possible, especially for those in informal employment. In these circumstances we believe a more flexible approach is necessary.

And excellent model is the FICA legislation which gives scope for exercising discretion. The financial institutions were required to take “reasonable steps” to establish the identity of their clients. Under RICA, there is no discretion. The Chamber proposes that the legislation be amended to follow the FICA approach.

Enforcement

The Chamber believes that there will be significant problems in the enforcement of this legislation where cellphones or SIM-cards are passed on to others. Part of the problem will be in the ensuring that the provider is given te correct information. There would need to be a common database of cellphones and SIM-cards as pre-paid subscribers often change the service providers and one cellphone may have several changes. Another issue is that one cellphone owner may use different service providers for different pre-paid services, It is common practice for people to use one service provider for work and another for private use. Examples of these include sports coaches and others who do not wish to be disturbed after hours.

There is a further problem in the definition of the term “family”. It is unlikely that this definition would be accepted. The Chamber believes that compliance with this Act will be very difficult to monitor.

The penalties for non-compliance

We are of the view that the penalties of up to R100 000 per contravention per day are excessive.
 
The manner in which the legislation is drafted:
While we have no objection to the aims of the Act we believe a better approach would have been to empower the Department to make the regulations instead of embedding them in the Act. This would put it in a position to make changes, adaptations and rulings to deal with the practical problems of implementation without the costs and delays of referring the legislation to Parliament for amendment. This approach was followed with the FICA legislation and proved to be successful.

Necessity of legislation:

There are similar controls in developed countries but the situation in South Africa is different as the proportion of pre-paid subscribers is extremely high, making it more difficult to keep track of phones. The legislation does not appear to make allowances for this difference.

Phasing in period.

In terms of the proposed amendment to the legislation, all registrations are required to be complete within 12 months. Given the difficulties arising from the mobility of pre-paid subscribers this time frame appears to be unachievable. We suggest, therefore, that that implementation be phased in, starting with all new
phones, SIM-cards and upgrades. Once this has been done the process can be extended to the remainder of the prepaid subscribers, perhaps on an alphabetical basis as was done with driver's licenses. The cellphone companies already have the requisite information on contract subscribers.

Registration of tourists on arrival into South Africa:

The legislation requires that all foreign visitors would have to register their handset details and passport numbers at the point of entry to the country. This is likely to cause considerable delays and will certainly not improve the country's reputation for hospitality. Tourists do not usually travel with extensive documentation on their places of employment and could have difficulty in providing items like business letter heads. Furthermore the requirement that tourists report the theft of cell phones is difficult to enforce.

We are also concerned that overseas handsets could have special value to criminals and this could make tourists the targets of criminals with grave consequences for the tourism industry.

Cost of implementation:

The Chamber believes that the requirements of the legislation will create a huge additional administrative burden for the industry and these costs will be passed on to subscribers. The country is already burdened by among the highest telecommunication costs in the world while administrative capacity is limited. The
State President has stated his belief that telecommunications costs should be reduced to facilitate economic growth.

Current implications of Cellphone use in criminal activity:

The Chamber believes the way to tackle cellphone theft is to ensure that stolen cell phones can be disabled by the service provider once they pass out of the hands of the legitimate owner. This would result in stolen cellphones having little value except as spare parts, removing much of the incentive to steal. Serious criminals who need phones for their activities would simply use false documents to buy phones.