Sweeping new legislation aimed at enhancing the ability of police and intelligence services to eavesdrop on cellphone calls and other forms of electronic communication will soon come before Parliament.
The Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill was approved on Wednesday by Cabinet.
Among its more important provisions are requirements that network operators such as MTN, Vodacom and Cell C install equipment allowing law enforcement officials, with a judge’s permission, to quickly and easily listen in on cellphone calls, a process that is currently cumbersome and unreliable.
In a bid to limit the use of untraceable ‘pay-as-you-go†cellphones in crime, service providers will also be required to record the personal details of anyone buying a prepaid SIM card or handset package.
The decision to move ahead with the law is controversial, given the political context. It comes against the backdrop of ongoing controversy over illegal surveillance and wire tapping by the National Intelligence Agency.
Billy Masetlha, former NIA director general, has been dismissed, along with deputy director general Gibson Njenje, counter-intelligence chief Bob Mhlanga and cyber-spy Funi Madlala, after being implicated not only in the ‘hoax e-mails†saga, but in using the National Communications Centre in an illegal attempt to intercept phone calls.
They targeted 13 people, including businessmen Cyril Ramaphosa and Saki Macozoma, Mail & Guardian founding editor Anton Harber, African National Congress spokes-person Smuts Ngonyama, ANC chief whip Mbulelo Goniwe and the parliamentary offices of the Democratic Alliance.
Most of the attempts were unsuccessful, according to Intelligence Minister Ronnie Kasrils. Operatives were only able to listen in on Goniwe and Ngonyama because they made calls from outside the country that were carried by satellite, he explained.
‘Eavesdropping on cellphone calls is extremely difficult because of the encryption,†explained Vodacom spokesperson Dot Field. The new measures envisaged by the legislation will make it much easier, allowing direct access to network traffic.
However, Field insisted users need not fear that their privacy would be compromised, as a warrant signed by a judge would be required before access was granted: ‘It’s no different from the current situation with your Telkom line.â€
Vodacom would also be ready for the end-of-June deadline for recording the identity of all new prepaid customers, she said.
Cellphone data — currently limited to fairly basic records of calls made and SMSs sent, along with location information — already plays a major role in criminal investigations and legal proceedings.
The most prominent recent instance is the rape trial of Jacob Zuma, where the prosecution led evidence of a flurry of calls made by Zuma when he learned a criminal complaint might be laid against him.
In the sensational Cape Town murder trial of Dina Rodrigues, the state introduced records showing that Rodrigues sent threatening text messages to Natasha Norton and made voice calls to one of the men who allegedly carried out the contract killing of Norton’s infant daughter, Jordan-Leigh.
Indeed, so important is cellphone data to the South African Police Service and the National Prosecuting Authority that Vodacom has introduced a paperless system for receiving and processing the Section 205 subpoenas that investigators must serve if they want to inspect customer records.
The new legislation puts more powerful surveillance tools in state hands. Although it creates measures to regulate their use, privacy concerns will persist.
When Inspector General of Intelligence Zolile Ngcakani released his report on the hoax e-mails and illegal surveillance, Barry Gilder, who heads the National Intelligence Coordinating Committee, was asked at a press conference how citizens could be confident that spies would not abuse their arsenal of electronic snooping devices. The report, he insisted, was proof that the system of checks and balances works.
Six weeks later, no arrests have been made, although intelligence department insiders say the South African Police Service is still investigating.
On Wednesday Cabinet also approved, for its second submission to Parliament, the long-awaited Sexual Offences Bill. Early versions of the legislation, which underwent substantial revision in Parliament’s justice committee, had introduced major changes to the definition of rape, altered some of the evidentiary rules for sex offence cases and proposed new measures to protect and support complainants during the court process.
The last publicly available draft is less ambitious, but still widens the definition of rape to include sexual assault on men and provides some protection for complainants against questioning about past sexual conduct.