(
Scripturelink Voters' Guide;
IOL (Secular; Independent; South African)
01 / 07 | July / 2009 ;
30 / 06 | June / 2009: Pretoria News ;
30 / 06 | June / 2009: SAPA; ;
MSN (Secular; Independent)
29 / 06 | June / 2009; DOJ Press Release
30 / 06 | June / 2009)
Governmental Links:
Department of Justice and Constitutional Development:
Inter alia: Profile of
Jeff Radebe
http://www.doj.gov.za/contact/cnt_min.htm
Press Release: 30 June
DOJ Press Release 30 / 06 | June / 2009
http://www.doj.gov.za/m_statements/2009/20090630-st-rica.pdf
Presidential Assent: By
Jacob G. Zuma
http://www.doj.gov.za/legislation/proclamations/2009-no39-gg32341-interception.pdf
We were not able to access the actual
act, in order to analyze it ourselves, due to slow operating of a
government site. And due to the confusing process this
act underwent.
Dislcaimer:
This article does not constitute legal advice. It is based on
interpretation of facts, as
portrayed in different
articles, of press group:
IOL. Rely on it a your own risk.
Article by Marc Aupiais
It is
advertised as a manner of
pre-empting crimes. If the
police can monitor you, they
can stop something happening. This use of
monitoring technology was
successful, in one instance in
Canada, when a certain
Graham McMynn, was saved from
captors, after
police in
Canada did an "
emergency wire tap", allowed in
Canadian law in those circumstances, without a
warrant from a judge (
MSN (Secular; Independent)
29 / 06 | June / 2009).
The problem with the
South African version of
legislation governing wire taps etc, where
information is
archived, and then accessed with the permission of a
judge, requiring all cellular users to be
registered, along with their place of
residence, or nearby
church or
school, if they have no
formal home, is that it is
feared to be too much like
big brother, as
citizens can no longer use
telecommunications anonymously.
According to the Department of Justice (
And Constitutional Development), which says that from June first (
Today), new
cellular users will have to comply with the
regulations: that they be
registered, in order to buy a
starter pack from
network providers:
"The Act was necessitated by the fact that criminals make use of new technology to plan and execute crimes. These amendments are in line with similar legislation that has recently been adopted by many other countries across the world. The aim of the amendments is to assist the law enforcement agencies in the investigation and combating of serious crime and to ensure that the identity and whereabouts of the owner of a SIM-card who used a cellular phone in the planning and execution of a serious crime is known. Government will therefore work closely with the various services providers to ensure the successful implementation of this Act."
(DOJ Press Release 30 / 06 | June / 2009)
In
South Africa, many
customers of
cellular services use prepayed
airtime, which is bought from
shops, and added onto their
cellular account as they need it.
Cellular companies in The
Republic of South Africa have not
traditionally been required to look into who were using their
prepaid services.
IOL has been reporting for a while now on the:
Regulation of Interception of Communications and Provision of Communication Related Information Act (
RICA),
regulating inter alia, the
tapping or interception of private communication sent via
telecommunications structures.
According to
IOL:
"The new act will force cellphone operators, including Internet and email service providers, to keep SMSes [What are known overseas as Texts: Small Message Service], emails and voice calls in an archive to allow for access by authorities."
(IOL (Secular; Independent; South African) 30 / 06 | June / 2009: Pretoria News)
However, in later article,
IOL note assurances from the
South African state: that
voice calls on cellular phones will not be
illegally intercepted, and that
interception of cellular phone based voice calls required the
go-ahead of a judge. No
public assurances about one's
emails were to our
knowledge: noted, and
Cellular providers are already, to my knowledge:
required to keep smses for a period of about
5 years. This later claim by
IOL seems to contradict the previous, which we quote of them, as allegedly appeared in
Pretoria News, unless cellular companies are to record all voice data sent through their networks, and unless,
storage of
voice calls is not what the
minister there notes as
interception. As we have been unable to find a
copy of
the act, we cannot
presently elaborate.
IOL noted the allegations that part of the
ANC (
African National Congress ) had used its power in the past, via state intelligence, to allegedly tap the conversations of political rivals. An
allegedly tapped conversation, was allegedly used by
President Jacob Zuma, whereby rival:
Former President Thabo Mbeki, is alleged to have said some compromizing things as
President, while speaking to a
state employee, who was prosecuting
Jacob Zuma on over 700
now dropped charges of alleged corruption, the conversation having been
secretly monitored by the NIA (
National Intelligence Agency), the
alleged tapes of the conversation, had
reportedly been given to
Jacob Zuma's lawyer, and an
acting National Director of Public Prosecutions (
NDPP) had dropped the case (His
predecessor having been fired, by the
ANC lead government).
IOL notes that access to the new archives will
require the authority of a judge.
The act probably will mean that many many
personal private conversations will be acessible to the
state:
possibly in the future: going back
years and years, hardly how the
Canadian system of emergency tapping beneficially worked to save a captive. There
reportedly is still the
important requirement that a
judge be
involved, in
taps which is
notable. However: exactly what the
act entails is
cloudy. It seems to have been
passed already in 2008, and
IOL mentions 3 years of
progress. There are certainly
articles from 2006 on the
RICA act, however. The confusion has meant that we have not been able to give our fuller coverage of this topic, especially as we do not have a copy of the act in our possession.
Analysis
On the surface,
trust in the judiciary in South Africa, certainly is not at a high, especially as
parliament has been alleged to have shown some
influence over judges. Recent suggestion, by
Jeff Redebe (
Minister Jeffrey Thamsanqa Radebe): of
amending sections of the
Constitution of the Republic of South Africa, 1996, which are probably in place to ensure
Judicial Independence, has also recently been
reported.
While
regulations have seemingly in the past
required that
cellular companies keep
SMSes for
five (
5)
years on their
servers (I have visited
MTN's foreign services backup centre, where they
use impressive technology to store information), the
newly enforced legislation could well mean that
the State has access to many of your
every digital, transferred electronic words. It could
seemingly mean, that with the
help of a
single judge, your
electronic past from a
date some time
prior: could be
accessed, and
seemingly brought before a court of law, and
connected to you. An
important part being that one would now have to
prove who they were, give their
Identity (ID) Number over to
cellular services providers, and reveal where they live: or have their
SIM card deactivated. This means that
archives of your
communication habits, could be linked to you. It is also
of note, that the
government states that the
law is
apparently necessitated due to a so-called need to
monitor possible criminals in case they commit crimes.
As one's
physical position may be gained from their
cellular phone's location: via
triangulation, it is also
possibly concerning that
all cellular phones will need to be
registered. How
secure the
archives kept by
telecommunications companies will be, is
unclear to us.
Telecommunications companies have 18
months allegedly, to
register the details of all users, after which they will be
charged R 1 00 000 (
One Hundred Thousand Rand), per a
day late.
The
Republic of South Africa gives a
Constitutional right ( in
Chapter 2) to its
citizens, of
privacy, however the
reported requirement of a
judge's go ahead to
access archives, and the
fact that no
rights given
South African citizens are absolute, could mean that this
act remains unchallenged. The
authorities are desiring that
proof of residence be given in
person, for instance:
via bank statements: by
persons to their
cellular companies, according to
IOL. How this will affect the
2010 FIFA (
Football /
Soccer)
World Cup, already
reportedly in trouble due to
alleged lack of interest in touring here:
among foreign fans, is not
immediately clear.
The
legislation, is meant to
combat crime, according to
Justice Minister:
Jeff Radebe (
Minister Jeffrey Thamsanqa Radebe of The Department of Justice and Constitutional Development):
""The aim of the amendments is to assist law enforcement agencies in the investigation and combating of serious crimes, and to ensure that the identity and whereabouts of the owner of a SIM card who used a cell phone in the planning and execution of a crime is known," "
(IOL (Secular; Independent; South African) 01 / 07 | July / 2009)
The
later article by
IOL quotes
Jeff Radebe (
Minister Jeffrey Thamsanqa Radebe) as saying that the
legislation only allows the
tapping of
voice conversations over
cellular phones, with the permission of a
judge, and
on the basis that it is
reasonable to believe that a crime will be committed. If the
Pretoria News article, as we have quoted it, was
correct, then this would still leave
unanswered: doubts involving the
possibility of
voice conversations being
stored in an archive. The later statement, as noted seems different from
IOL's claims in
Pretoria News.
South Africa's intelligence agencies seemingly: already have a right, with a
judicial warrant, to tap into phone conversations.
The
legislation was
signed by the
President of the Republic of South Africa, Jacob G. Zuma, on the
18th June 2009, according to the
DOJ website (
No 39 of 2009: Signature 18th June 2009: http://www.doj.gov.za/legislation/proclamations/2009-no39-gg32341-interception.pdf).
While accessing the
DOJ (
The Department of Justice and Constitutional Development)
website, I was unable to find the
actual wording of the
act, nor to determine the
exact meaning of the
enactment of this
legislation. I have thus been forced to rely on what
Independent Newspapers (
IOL)
has said on this issue.
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