Wednesday, July 1, 2009

South Africa: State to spy on cell phone, internet, emails of citizens to prevent crime?

(Scripturelink Voters' Guide; IOL (Secular; Independent; South African) 01 / 07 | July / 200930 / 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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