28 June 2008 by

Proposed amendments to interception legislation

Legislation such as the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) was promulgated ostensibly as a means to fight crime and allows for the interception of telephonic or other communications. In its attempt to crack down on the use of cell phones in crime, Parliament is in the process of amending RICA to implement stricter measures regarding the use of electronic communications within South Africa.

In terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Bill (Amendment Bill), a communications service provider is required to comply with certain provisions regarding the identity of a customer before it can activate a SIM card or allow for the use of a cell phone on its network. This requirement applies to both new customers and current users of the service provider's cellular network (whether on contract, the pre-paid cellular mobile system, or a visiting foreigner).

The service provider must obtain, verify and store information regarding a customer's name, identity number and address and, for foreign customers, their passport or travel document details. Where the customer is an entity, the name and address of the entity and its representative(s) are required, together with its registration number.

The service provider is required to verify the information provided by requesting proof of identity and address from the customer. Under the Amendment Bill, even a customer living in an informal settlement is required to furnish proof of his address of not older than three months. Where the service provider's employee or agent knows or suspects that a customer has submitted false identification, that employee or agent is obliged to report the matter to the police within 24 hours.

The service provider is required to record and store the collected documentation in a secure facility, which is only accessible to persons designated by the service provider. In order to ensure the safety of the collected information, the Amendment Bill allows for the Justice Minister to draft regulations regarding the levels of security required for the storage facilities.

Under the Amendment Bill, the new penalties for non-compliance are relatively harsh with a defaulting service provider having to pay up to R100,000 for each day of non-compliance. A service provider's employee who fails to report a customer's use of a false identity document will be fined and can spend up to one year in prison.

Preeta Bhagattjee and Bulelwa Madekurozwa

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