RICA 'impossible' for ISPs

A failed appeal for exemption from legislation that forces communications companies to register customers could see local Internet service providers (ISPs) pay a R2 million fine, or face a 10-year jail sentence.

The Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) got under way in June last year, leaving operators and ISPs with 18 months to collect customer documentation, including proof of residence and ID documents.

However, ISPs have been fighting the clauses in the legislation in an attempt to be declared exempt under certain clauses in the law, in a battle that now seems to have come to a head.

The Internet Service Providers' Association of SA (ISPA) yesterday released a statement saying the Act may well be impossible for local ISPs to comply with. "We remain concerned about the obligations that RICA places on our members in terms of customer registration and verification,” says Dominic Cull, regulatory advisor to ISPA.

The Department of Justice (DOJ), which is spearheading the legislation, has denied the ISPs leave to continue as before, which could see local service providers pay the R2 million fine, or even face a 10-year jail sentence.

RICA stipulates that certain service providers will be considered exempt from registering customers if “he or she carries on such a small business that he or she cannot comply”.

While some local ISPs can be considered small, even local bandwidth suppliers are picking up business, with broadband access becoming more available.

Mobile operators have been working hard on means to get customers registered on their networks. They have faced an uphill battle to get South Africans to bring the relevant documentation to the many retail stores each operator runs.

With few points of presence, local ISPs will have a far harder task getting customers to come to their storefronts. Many customers buy from a Cape Town-based ISP, while living in Johannesburg, using the Internet as a sales point.

The trouble for the ISPs is that the DOJ wants the documentation to be verified, meaning customers and ISPs will need to have a face-to-face interaction. “It is not clear to ISPA how such an ISP will be able to verify RICA documentation in person where its customers are hundreds or thousands of kilometres away,” adds Cull.

Mobile operators are also generally better financially padded and have thrown millions if not more at the problem, having terminals built and rolled out, and retail partners join in the registration process.

However, many ISPs don't have the finances to have these terminals rolled out, nor do most have access to the retail relationships held by the mobile operators.

“If the mobile providers are struggling to comply with personal verification then it follows that personal verification will be close to impossible for ISPs to comply with. Most of our members have a purely online relationship with their customers, since they do not provide a physical component of their service, such as a SIM card,” explains Cull.

While it does appear the DOJ is looking at trying to find a solution specific to the ISPs, local providers will still be concerned. The department says ISPs will be allowed to use agents to help register customers; however, these companies will have to start sourcing soon if they want to make deadline.

It is also likely that the ISPs will be granted an extension, since they have yet to start the registration process. “While this represents a step in the right direction, it remains ISPA's view that the imposition of personal verification obligations will have a chilling effect on Internet access and competition in SA,” says Cull.

With the low penetration of Internet across SA, this Act may cause a severe slowing of access growth locally, a problem the country as a whole can ill afford.

"ISPA will make further submissions to the Department of Justice in the hope of getting it to recognise the difficulties and costs our members will face in meeting RICA obligations in their present form. Nobody's interests will be served by creating an obligation, which is impossible to comply with," says Cull.