The Way Business Is Moving published by
Issue Date: September 2002

Is Big Brother a big bother?

September 2002
Reinhardt Buys, Buys Inc Attorneys

The Justice Portfolio Committee has just finalised its deliberations on the new ‘Big Brother’ law – and the South African consumer will probably have to pay the price through higher Internet access and telephone call rates.

The main purpose of the above mentioned Bill is to outlaw the interception and recording of conversations, telephone calls, cellphone calls, SMS, e-mail, letters and postal packages by any person - this is the general rule.
The Bill makes provision for certain exclusions to this general rule and the State or third parties may, under the following conditions, intercept communications. These are:
* Both parties to the communications agree thereto;

* A recording or interception by any of the parties without the other's consent;

* To prevent possible serious bodily harm;

* To locate a person in an emergency;

* To maintain a telecommunication service;

* Carrying on of a business; and

* Prisoners' communications (eg, post and telephone messages).
If, the police or the National Intelligence Agency wishes to intercept a communication then they must apply for a so-called 'directive' from a judge. The applicant will have to satisfy the judge that a crime was committed, is being committed, will be committed, or that the security and economic well-being of South Africans are threatened.
Vanished privacy
Although this Bill is a serious infringement of privacy rights, the checks and balances built into the Bill would probably pass constitutional scrutiny on the basis that the right to privacy has to be balanced with the duty of the government to protect its citizens.
However, two aspects of the Bill have caused some debate:
Firstly, the Bill requires telecommunication providers (eg, cellphone companies) and Internet service providers (eg, M-Web and World Online) to install the necessary equipment, technology and communication lines to make it possible for the interception of a communication by the State - the telecommunications provider and ISP will have to pay for this! Similar legislation in other countries has placed severe financial strain on ISPs that are already struggling to break even. Communications providers also need to store information about customers and communications for very long periods. This will imply further costs in terms of technology, legal policies and manpower.
The financial burden that this law will place on communication and Internet Service Providers will no doubt result in higher communication and Internet access fees for consumers.
The Minister of Justice may declare that ISPs that cannot afford these payments be exempted. It is still uncertain whether public access providers like the Post Office and Universities will have to carry this financial burden or not.
The Bill also provides that a judge may issue a 'directive' that an encrypted message be de-crypted by the technology provider. This means that the police may intercept an encrypted e-mail and ask companies such as Verisign, Thawte and NamITrust, to de-crypt such e-mail. Failure to assist the Police may result in a 20 year imprisonment and/or a fine of R2 million.
Secondly, from a technical perspective it is doubted whether or not: the police will know what technology was used to encrypt a message in the first place; and whether or not the technology provider has the necessary decryption keys to override the initial encryption. In some advanced cases the only decryption key will be biometrical facts of the receiver eg a thumbprint or a retina scan that cannot be provided by the technology company. Encryption providers also play a very important role in the economy (eg, online banking) and the fact that their services and security may be compromised will raise serious economic and constitutional concerns.
A copy of the draft Bill is available at:

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