The Electronic Communications and Transactions Act became law last week, marking at least a temporary end to the controversy that surrounded it. But another long-simmering piece of technology legislation is due to come under the spotlight soon and could cause an even greater storm.
The Interception and Monitoring Bill came under fire earlier this year when it became apparent that telephone and Internet users would foot most of the bill to give the state the ability to intercept their communications.
As the bill stands, Internet service providers (ISPs) and telephone companies will have to acquire any equipment the government thinks necessary for interception, at their own cost, and establish links to official monitoring stations.
The bill will also directly affect consumers through rules aimed at making it impossible to circumvent monitoring. Under the current version it will be a criminal offence not to report the loss or theft of a SIM-card or cellular phone smart card to police within 24 hours.
Anyone in possession of a stolen SIM-card will be guilty of an offence unless able to prove that they had a reasonable belief that it was not stolen. And if a SIM card is lost or stolen because of "failure to take reasonable steps to prevent the loss or theft" the owner could be sent to jail.
These rules are part of a broader intention to make it illegal for anyone to provide a telecommunications service, including Internet provision, that cannot be monitored. It will also be an offence to own or sell equipment that is "primarily useful" for interception or for reverse-engineering any telecommunications software or system.
When an order is issued for the interception of communication that is encrypted, it can also require anyone holding the keys required for decryption to assist in decoding information.
The Bill is still before Parliament`s justice portfolio committee and only working versions are available as substantial changes are still being made. Yet rumour that it could be presented to the National Assembly as soon as this month has renewed calls for its review.
The ISP Association (ISPA) says it is concerned that the added costs of interception and monitoring capabilities will result in a sharp increase in the cost of Internet access in SA. The body is also worried that smaller providers could go out of business as a result.
The Bill gives the minister of Justice and Constitutional Development the opportunity to exempt certain providers from the monitoring requirements. Should their applications not be accepted, however, they face fines of R1 million and a further R50 000 per day for not complying with valid interception orders.
Another proposed provision will require telephone and Internet providers to demand a copy of a user`s ID document before allowing the use of communications services, which ISPA says would hamper automated sign-up and other services.
"The practical value of such identification requirements is also questionable," it says. "Determined Internet users - or those with criminal intent - can dial around the system, connecting to the Internet via an international telephone call to a foreign country without identification requirements."
Several bodies have commented on the lack of accountability the monitoring the law would allow and have variously called for an annual audit of interception and the establishment of a commissioner to oversee it.
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