CLFR - South Africa

Monday, January 8, 2018 - 12:33

PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE

The Regulation of Interception of Communications and Provision of Communication-Related Information Act no.70 of 2002

The Regulation of Interception of Communications and Provision of Communication-Related Information Act no.70 of 2002 (RICA) prescribes that the interception and monitoring of communications is prohibited unless:

 

  • a directive has been granted that permits the prohibited activities; 
  •  the party protected by RICA gives requisite consent;
  •  the entity engaging in the above activity was also a party to those communications;
  •  intercepting, monitoring or disseminating information of an employee while carrying on a business;
  • interception to prevent serious bodily harm;
  • interception to determine a location during an emergency; or
  • when entitled to do so in terms of other legislation.

 

An interception direction can only be issued in the event that a judge is satisfied that a serious offence has been or will be committed, or the gathering of information is necessary concerning an actual threat to the public health or safety, national security or compelling national economic interests of the Republic.

Chapter 3 of RICA sets out circumstances under which an applicant may apply for an interception and monitoring direction and entry warrants along with the manner in which such directions and entry warrants are to be executed. 

Section 16 of RICA provides that an applicant may apply in writing to a designated judge for an interception direction where there are reasonable grounds to believe that a serious offence has been, is being or will probably be committed or in order to gather information concerning an actual or potential threat to the public health or safety, national security or compelling national economic interests. In terms of section 22, the applicant may simultaneously apply for an entry warrant.

Section 21 of RICA provides for the issuing of decryption directions by application to a designated judge. Oral applications for any direction or warrant listed above may be made in terms of section 23 of RICA.

Section 30 of RICA provides that a telecommunication service provider must provide a telecommunication service which has the capability to be intercepted and store communicationrelated information. A directive prescribes the:

 

  • capacity needed for interception purposes;
  • technical requirements of the systems to be used;
  • connectivity with interception centres;
  • manner of routing duplicate signals of indirect communications to designated interception centres; and
  • manner of routing real-time or archived communicationrelated information to designated interception centres.

 

DISCLOSURE OF COMMUNICATIONS DATA

RICA requires a telecommunication service provider to intercept and stores communication-related information which is commonly referred to as metadata.

Section 17 of RICA provides for the issuing of a real-time communication-related direction. This is required where no interception direction has been issued and only real-time communication-related information on an ongoing basis is required. An applicant may apply to a designated judge for the issuing of same.

Section 19 of RICA provides for the issuing of an archived communication-related direction. If only archived communication-related information is required, an applicant may apply to a judge of a High Court, a regional court magistrate or a magistrate for the issuing of same.

NATIONAL SECURITY AND EMERGENCY POWERS

Except as set out above, the South African government does not have any other legal authority to invoke special powers in relation to access to a mobile network operator’s customer data and / or network on the grounds of national security. 

OVERSIGHT OF THE USE OF POWERS

As detailed above, applications under RICA may be made to a designated judge, high court judge, regional court magistrate or magistrate as the case may be. The “designated judge” refers to any judge of a High Court discharged from active service under section 3(1) of the Judges’ Remuneration and Conditions of Employment Act No. 47 of 2001 or any retired judge who is designated by the Minister of Justice to perform the functions of a designated judge for purposes of the act.

In respect of the maintenance of interception capability as required under Section 30 RICA, there is no judicial oversight of the requirements issued. The cabinet member responsible for communications, together with the Minister of Justice after consultation with the Independent Communications Authority of South Africa and the telecommunication service provider/s concerned, must, on the date of the issuing of a telecommunication service licence, issue a directive as detailed directly above.

CENSORSHIP RELATED POWERS

SHUT-DOWN OF NETWORK AND SERVICES

There is no national security legislation that empowers the government to order a blanket shut-down by network providers of their network or communications services.

However, subject to compliance with the provisions of section 37 of the Constitution, the government may, after declaring a state of emergency, implement measures that derogate from the protection afforded under the Bill of Rights. Such measures may include derogation from the guaranteed right to receive and impart information or ideas as set out under section 16(1)(b) of the Constitution. Moreover, such measures can include the order for the suspension of communications services. A state of emergency can only be declared in terms of an Act of Parliament and only where the nation is threatened by war, invasion, disorder, natural disaster or other forms of public emergency or where the declaration is necessary to restore peace and order. States of emergency are measures of last resort and can be justified only by an exceptional crisis which affects the whole population and constitutes a threat to organised life of the population; the mere existence of disorder or unrest is not sufficient.

The Electronic Communications Act No. 36 of 2005 (the “EC Act”) and the Independent Communications Authority of South Africa Act No 13 of 2002 (“ICASA Act”) empower the Authority to suspend or cancel an individual network provider’s licence (such as Vodacom’s) in specific instances. The effect of such suspension or cancellation would be that the affected licensee would be unable to provide its network or services –effectively shutting them down. Such suspension or cancellation can only be directed at an individual licensee due to its non-compliance with regulatory requirements; it cannot be a blanket order to all network provider licensees, even during periods of unrest or emergency.

A law enforcement authority can also, at any time, seek a court ordered subpoena to require a network provider to shut-down its network or services.

BLOCKING OF URLS & IP ADDRESSES

It is feasible that network providers (such as Vodacom) might be requested to block certain URLs or IP addresses however no such request has to date been made.

OVERSIGHT OF THE USE OF POWERS

As detailed above, applications under RICA may be made to a designated judge, high court judge, regional court magistrate or magistrate as the case may be. The “designated judge” refers to any judge of a High Court discharged from active service under section 3(1) of the Judges’ Remuneration and Conditions of Employment Act No. 47 of 2001 or any retired judge who is designated by the Minister of Justice to perform the functions of a designated judge for purposes of the act.

In respect of the maintenance of interception capability as required under Section 30 RICA, there is no judicial oversight of the requirements issued. The cabinet member responsible for communications, together with the Minister of Justice after consultation with the Independent Communications Authority of South Africa and the telecommunication service provider/s concerned, must, on the date of the issuing of a telecommunication service licence, issue a directive as detailed directly above.

POWER TO TAKE CONTROL OF VODACOM’S NETWORK

The government does not have the legal authority to take control of Vodacom’s network. It is hypothetically possible that the powers exercised by the government during a State of Emergency might amount to taking control of a network provider’s network, but this is without precedent. Oversight of the use of powers A network provider may submit a complaint about a request made to it by the government or a law enforcement authority, including during a state of emergency, to the Inspector General of Intelligence. The Inspector General of Intelligence oversees the activities of law enforcement authorities, such as intelligence agencies and the police. Upon a complaint being made by a network provider, the Inspector General would investigate and provide an opinion as to whether that network provider should comply with the request or not.

Each court ordered subpoena contains a date at which a court hearing will take place. Should the network provider subject to the court order decide to challenge the subpoena (including their obligation to comply with it), they can do so at the scheduled court hearing. 

OVERSIGHT OF THE USE OF POWERS

A network provider may submit a complaint about a request made to it by the government or a law enforcement authority, including during a state of emergency, to the Inspector General of Intelligence. The Inspector General of Intelligence oversees the activities of law enforcement authorities, such as intelligence agencies and the police. Upon a complaint being made by a network provider, the Inspector General would investigate and provide an opinion as to whether that network provider should comply with the request or not.

Each court ordered subpoena contains a date at which a court hearing will take place. Should the network provider subject to the court order decide to challenge the subpoena (including their obligation to comply with it), they can do so at the scheduled court hearing.

This information was originally published in the Legal Annexe to the Vodafone Group Law Enforcement Disclosure Report in June of 2014, which was updated in February of 2015.