Published in Without Prejudice, August 2009

Toka Machabaphala and Mpilo Sikhakhane, Candidate Attorneys at Bell Dewar

The Regulation of Interception of Communications and Provision of Communication-related Information Amendment Act No. 48 of 2008 ("the Amendment Act") is an amendment to the Regulation of Interception of Communications and Provision of Communication-related Information Act No. 70 of 2002 ("the Principal Act"). The Amendment Act came into force on 1 July 2009¹ .

According to the Department of Justice and Constitutional Development, the objective of the Amendment Act is to assist law enforcement agencies to investigate and fight crime by ensuring that the identity and whereabouts of criminals who plan and execute crimes using cellular phones is accessible to such government agencies.

In broad terms, the Amendment Act requires that certain information in respect of cellular phones and SIM-cards be obtained and kept by the electronic communication service providers ("service providers"). It further introduces offences and prescribes penalties for non-compliance. The service providers have 18 months with effect from 1 July 2009 to capture and verify the particulars of existing customers who are owners or users of activated SIM-cards. Beyond the 18 months period, service providers must terminate the service associated with the SIM-card provided to customers whose particulars are not captured.

The Amendment Act has far-reaching implications especially in relation to the use of SIM-cards. As such, it is critical that service providers, juristic persons and the ordinary customers understand their respective obligations under Amendment Act and the consequences of non-compliance. Although the object of the Amendment Act is clear, the implementation thereof poses additional challenges, further outlined below.

The Principal Act, which came into force on 30 December 2005, provides for the interception of electronic communications in certain circumstances. The Principal Act allows, on issue of an interception direction by a designated judge, for the interception of communications if there are reasonable grounds to believe that a serious offence has been or will be committed. The introduction of the Principal Act has sparked concerns about the infringement of the constitutional right to privacy.

In terms of the amended section 40, with effect from 1 July 2009 service providers must at their own costs before activating a new SIM-card, capture and store the full names and surname, identity numbers, address and the cellular phone number of the customer. The service providers must also verify² the personal information of such customers. The Amendment Act further requires service providers, at their own costs, to capture, verify and store particulars of existing owners of activated SIM-cards. Since the Amendment Act requires service providers to verify such particulars, the unavoidable implication is that the service providers must ensure that the details provided are true, correct and complete.

The concern is the huge cost-implications attached to this process, involving, inter alia, labour to capture the information and facilities for storing the information. The service providers have, however, indicated that these costs will not be passed on to consumers.

The Amendment Act places a number of obligations on business entities. However, these obligations will depend on the capacity of business entities at a given point in time. For example, these entities may be affected as customers of the service providers, as employers or as re-sellers of SIM-cards.

Customer

If a juristic person purchases a SIM-card that is to be activated from a service provider, it should furnish such service provider with its name and address and in addition with its registration number. Furthermore, a representative of the juristic person must also furnish the service provider with his details.

Employer

In terms of the Amendment Act, a juristic person is under an obligation to keep "proper records" of its employees to whom it has provided cellular phones or SIM-card. Before a juristic person may provide a SIM-card to any person it must record and verify the details of that person. This information will be stored by such juristic person for a period of 5 years. The Amendment Act is silent however about the existing or already provided SIM-cards by the employer. One would imagine that the employer must embark on a process to record, store and verify information of employees to whom it has already provided SIM-cards.

Reseller

If a juristic person rents an activated SIM-card to another person they must record, store and verify the details of such other person. However, it remains unclear as to the impact of the Amendment Act on the business of retail stores, supermarkets, spaza shops and the like who are resellers of SIM-cards.

It must be noted however that the Amendment Act limits its application to the persons actually activating SIM-cards. A person who simply re-sells SIM-cards is not required to furnish the service provider with his/her details and has no obligation to record, store and verify the details of the SIM-card purchaser. Rather the purchaser himself who receives the SIM-card and wishes it to be activated must provide the service provider with his/her details. In other words a juristic person has no additional obligation in terms of the Amendment Act as a reseller of SIM-cards, unless the SIM-card is activated.

The Amendment Act allows the service providers a period of 18 months from the effective date (1 July 2009) to capture and store personal information of the customers. The answer to the question whether this period is reasonable or not, depends on the number of customers for each service provider and the availability of resources required for implementation of this legislation.

The capturing of information is one of the greatest challenges to the implementation process for two reasons. Firstly, it must be remembered that a number of South Africans do not have identity documents but nevertheless use cellular phones. What does this mean for those without identity documents or any form of official identification? Luckily for those persons who cannot provide a form of official identification but use cellular phones, an easy solution is to have the SIM-cards registered in the names of their family members.

Lastly, it is important to note that a sizeable number of South Africans live in deep rural areas where the location of an area is usually identified in reference to a river or a mountain. It will be very difficult, and in most cases impossible, for such customers to provide the service providers with details of their address. However, the Amendment Act tries to lessen this challenge by providing that customers may also furnish the address of a nearby school, church or retail store where they receive the post, as part of their particulars. However, those who have lived or still live in remote under-developed rural areas know that the running of their daily lives seldom requires communication by post, or that even if does, there are no nearby schools or churches to receive such mail. Therefore this Amendment Act exposes them to the possibility of having their SIM-cards deactivated. The question that follows then is whether those cellular phone users who are unable to provide identity documents and proof of address, due to no fault of their own, are simply taken off the network? Or will there be some exemptions that will be granted to the deserving many?

Despite these challenges, the service providers have pledged their support to the government's objectives behind the Amendment Act and have further committed to working together in setting up the necessary infrastructure to meet the demands of this legislation and to minimise the costs of the implementation and compliance process.

Although the Amendment Act is in line with international best practice and has been met with a (reluctant) acceptance by the service providers, it will be interesting to observe the inevitable hurdles and the ultimate level of success of the implementation process and the legislation as a whole. What is inevitable is that the service providers will have to provide resources to meet their obligations in terms of this legislation. Furthermore, with this Amendment Act comes the potential of jobs for the many unemployed (data captures and the like) needed in the implementation process. However, as to whether the Amendment Act will achieve its intended purpose of combating crime, time will tell.

Machabaphala and Sikhakhane are candidate attorneys at Bell Dewar Inc. The article was approved by Nicola Jackson, a partner at Bell Dewar Inc.