The Electronic Communications and Transactions Bill is set to cause much controversy when it is discussed in Parliamentary public hearings next month.
The Internet community and IT industry have expressed concern about a number of provisions in the Bill they say can do substantial harm, despite the Bill`s intention to facilitate Internet and e-commerce growth in SA.
Chief among these are the wide-ranging powers the Bill would grant government to regulate Internet activity and private databases, areas generally as yet untouched by legislation.
Much of the 100-page Bill is also considered ineffective or unnecessary.
"Chapter three is the killer app as far as I am concerned. The rest, in my view, is laudable, but necessary? Not really," says Mike Silber, a specialist IT lawyer with Deloitte & Touche.
Silber was speaking at an information session on the Bill hosted by the local chapter of the Internet Society at the weekend.
Chapter three is seen as the heart of the Bill, as it contains the provisions that would give legal recognition to electronic documents and contracts, and make digital signatures legally binding. It would also validate the automated transactions typically conducted by e-commerce Web sites.
Silber also approves of chapter two of the Bill, which would require government to establish a "national e-strategy" which would make it a priority to ensure universal access to the Internet, to bring small enterprises online and to encourage human resources development in the IT sector.
"It is one of those chicken soup chapters that can do absolutely no harm and will hopefully do some good," Silber comments.
Chapter 11 of the Bill, which limits the liability of Internet service providers and establishes that they are only conduits, has been welcomed in principle by the Internet Service Providers Association.
Many of the 11 remaining chapters in the Bill have been slammed as being ineffectual, misguided or dangerous, starting with the definitions section, which declares that `electronic` "means digital or other intangible form".
Among the powers granted to the minister and Department of Communications should the Bill be passed unchanged, is the right to declare virtually any private database to be critical to the country. The minister would be able to dictate how such a database is to be stored, protected and managed, as well as who may have access to it.
To enforce this and other provisions, employees of the Department of Communications could be appointed as "cyber inspectors" with powers of search and seizure, including the right to demand the production of software licences, on the authority of a warrant.
Cyber inspectors would also enforce the registration of cryptography products. Under chapter five of the Bill it would be illegal to provide any cryptography product not registered with the government in SA, or for a local company to supply an unregistered product to foreign users. Contravention would carry a two-year prison term.
The Bill is open to public comment until 20 April, and the Parliamentary Portfolio Committee on Communications is expected to conduct public hearings on it during May. The current version of the Bill can be downloaded from ITWeb in rich text format here. A PDF version and details on the comment process are available at http://www.gov.za/bills/index.html.
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