Electronic Communications & Transactions Bill: formal deliberations

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Communications and Digital Technologies

30 May 2002
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Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
30 May 2002
ELECTRONIC COMMUNICATIONS AND TRANSACTIONS BILL: FORMAL DELIBERATIONS
 


Chairperson: Mr N Kekana (ANC)

Relevant documents

Electronic Communications and Transactions Bill [B8-2002]
Summary of Submissions
Proposed amendments to ECT Bill [B8A-02]
Proposed redraft Chapter 10 of the ECT Bill [prepared by Namespace, Uniforum and ISPA]

SUMMARY
The Committee continued their formal deliberations on Chapter 10 of the ECT Bill. However because the ANC proposal was not in writing, the Committee will return to this chapter on 31 May before voting on the Bill.

Chapters 5 (Cryptography Providers) and 9 (Protection of critical databases) was agreed to without any amendments. Chapter 12 was agreed to with one technical amendment proposed by the State Law Adviser. Chapter 13 was agreed to with one minor amendment proposed by the DP and one technical amendment proposed by the State Law Adviser. Chapter 14 was agreed to without any amendments. In each of the chapters the DP and the IFP noted their objections.

MINUTES
Chapter 10 - Domain Name Authority and Administration (Continued)
Part 2 - Governance and staffing of Authority
The Chair kicked off discussion by saying that Namespace seeks to introduce a framework modeled on ICASA and the MDDA. Yesterday the option of a panel had been discussed. The Chair asked if Clause 63 (Board of directors of authority) suffices, alternatively the members should propose other options.

Ms Vos (IFP) commented that her party favoured a panel that was representative, transparent and accountable and to take the form of a public / private partnership.

Mr Maziya (ANC) made the proposal of the ANC. He said that the Board should consist of 9 people of whom one is the chairperson. The Minister must appoint a panel consisting of 5 people. The names of the five on the panel should be gazetted. Nominations will be invited from the public in newspapers and the radio. The nominations will go to the panel. The panel will advise the Minister who should be appointed to the board. The names of those appointed must again be published in the gazette. The board must be broadly representative of the demographics of the country, including gender and disability. Mr Maziya continued and read out a list of nine stakeholder groups that must be represented on the board. The list is not too different from what is contained in Clause 63(2)(b), save for labour and the current administrators of domain names being explicitly included.

The above proposal relates to Clause 63(1) & (2). The rest of the subclauses remain the same.

Mr Maziya apologised that the proposal was not typed and circulated - this was due to time constraints.

Mr Gore (DP) told the members that they must look at the functions of the authority before considering whom to appoint to the board. The functions are very technical and the committee has a responsibility in the South African and international context to ensure that bad administration does not cause South Africa to get disconnected from the internet.

The Chair said that what the committee needs to decide is if in principle the panel option is the option.

Ms Vos wanted clarity on how the Minister will appoint the panel that calls for nominations.

Mr Maziya replied that the appointment of the panel must be left to the Minister. He has full confidence that the Minister will act responsibly. He added that the five names would be published anyway. The member thought that this was the way it should be done because the 5 people were not the board, just the panel to make sure that a board is appointed.

Ms Smuts (DP) commented that an existing private body is turned into something else and that body cannot be left out of the process. She said that much is unclear and that the proposal must be in black and white. It was important that the existing people administering the domain name are included in the five person panel. She asked if the member had consulted with Namespace about the proposal.

Ms Vos said that the IFP supports the panel approach but the current administrators must be involved in the process.

The Chair agreed that the ANC proposal must be in written form.

Ms Smuts said that this was the first time she has heard of the option put forward by the ANC. It must be in written form and then it can be looked at as an option - but not the option. The current administrator's rights and interests must be protected. Further, other interested groups like registrars and reps from the internet society must be on the panel of five.

She added that the Constitution does not oblige that the panel must be representative of the demographics. The demographics must merely be considered. The Bill should not make this binding because the board will deal with highly technical matters.

The Chair said that the proposal must be typed and then the committee would return to Chapter 10. Until then, the discussion should be held in abeyance.

Chapter 5 - Cryptography Providers
The Chair noted that the previous day he had been tolld that he should find out if the Interception and Monitoring Bill deals with aspects contained in this chapter. He had spoken to the Justice Committee and they said that it did not. The IMB Bill enables the State to investigate and there is no overlap between to the two pieces of legislation.

Ms Smuts wanted the whole chapter to be deleted. The only possible justification for mandatory registration could be security that was not in the ambit of the work of DoC. The first problem that needs clarification is what is the purpose of this chapter. The second problem is that the chapter covers all services in the Bill and she believed that the drafters might only be thinking about encryption. The way cryptography is defined in this Bill causes everyone to register. There is no purpose for this because anybody can use cryptography from the internet. Why it is made an offence not to register, is mystifying?

Mr Maziya used the analogy of a locksmith and said that there are many locksmiths but they have no right to open up our businesses. For this reason cryptographers must be regulated. He continued that without this chapter, the Bill does not work especially the chapter on authentication service providers who provide the advanced electronic signatures.

Members pointed out that Chapter six is not being dealt with at the moment.

The Chair said that there seems to be confusion and asked Mr Barrett (Cequrux; cryptography expert) to shed some light.

Mr Sheer said that cryptography is used for many things and not just advanced electronic signatures. He added that the chapter is very broad. He used the example of a builder. If a builder sub contracts to a locksmith, then the builder would have to register as a locksmith provider.

The Chair asked what was the argument. Was it that the register is to difficult to maintain or does it infringe people's rights and is unconstitutional.

Mr Dowry (NNP) said that his party felt it was unnecessary because it infringed freedom of expression, speech and information.

Ms Vos said that the IFP from the beginning felt that this chapter should be deleted. It is however clear that it is going to be in the Bill. If it is in the Bill, it would not be able to be enforced. If it is not deleted, she suggested two amendments. The first is in Clause 30(1)(c). Currently it says that the DG must record particulars in respect of a cryptography provider in the register. The details in sub (c) can be any particulars that are prescribed to identify and locate the cryptography provider or its products or its services adequately. Ms Vos proposed that after 'adequately' the words "excluding information used to decipher encryption" should be included.

The second proposed amendment was to Clause 31(3)(b). She had been informed that the clause infringes WTO and GATT because a foreigner who came into the country and used a foreign product would be included under this clause. The member wanted comment from the State Law Adviser. She concluded that it is one thing if the intention is to know who is providing these services, but if the intention is to access encryption, then the chapter is unacceptable.

Mr Gore said that the problem is that the definition of cryptography is far too broad. The definition first needs to be ironed out. He pointed out that the Memorandum of the Bill says clearly that the Bill is a tool for government to become involved in the interception and monitoring of messages. He said that this is the focus of Justice. Other issues that need to be considered are the constitutionality and justifiability of the chapter and whether registration is workable.

Mr Magashule (ANC) said that it is constitutional and it is justifiable and he moved that the chapter be adopted.

The Chair referred to Clause 30 and 31 and said that if you believe that you are a cryptography provider, then all the section says is that you must register. The Chair asked what was wrong with this. All the clauses want to do is demystify cryptography.

Ms Smuts said that the only reason it is not unconstitutional is because of Clause 30(3) but she still wanted to know what Clause 30(2)(b) meant. She wanted clarity on why in Clause 32(1)(d) there are specific references to sections 11 and 30 of the Promotion of Access to Information Act. Further she did not see the need for imprisonment in Clause 33.

Adv. Kellner (State Law Adviser) said that Clause 30(2)(b) is clear as it states that the register must contain a description of the cryptography service and product. He was not an expert but he would assume that there are different types of cryptography products. He could not answer why Clause 32(1)(d) refers to that Act. She would have to ask the DoC. In respect of 31(3)(b) - question by Ms Vos - he replied that the clause does not refer to a user - just a provider.

The Chair put Clause 30 to the Committee. The DP and IFP opposed the clause. The clause was agreed to as it stands in the Bill.

The Chair put Clause 31 to the committee.

Mr Gore proposed voluntary registration. The proposal was rejected. The DP and IFP opposed the clause. The clause was agreed to as is.

Clause 32 was put to the committee. The DP and IFP opposed the clause. The clause was agreed to as is.

When Clause 33 was agreed to, Ms Smuts commented that now even Bill Gates would have to be arrested when he comes to South Africa.

Chapter 5 was agreed to as is.

Chapter 9 -Protection of Critical Databases
Ms Smuts wanted to know what was the real intention of the chapter, because it was difficult to make head or tail of the intention when reading the chapter. The problem is if the private sector databases are included. If it can be established that government intends to include only public sector databases then a huge hurdle has been cleared. If private sector databases are included then she submitted that it infringes the right to privacy. The chapter provides that when the Minister contemplates regulations in relation to public critical databases, then the Cabinet must be consulted. There is no requirement of consultation when regulations are made in respect of private critical databases. If nobody can answer to whom this chapter applies, then she wanted the committee to decide to whom it applies.

Mr Ncaba (Director General) was asked by the Chair to answer this question. He reiterated the committee's procedure in that the department can only comment when they are invited to do so.

The DG replied that the chapter will apply to what is defined as a critical database within the republic. He advised that the chapter referred to both public and private databases and this was the policy decision that was taken. The rationale behind this is that critical databases would not necessarily exist only in government. There are databases that are outside government and important to national related issues. The DG assured the committee that there is no interest to access the content of databases. Nowhere does the chapter say that registration means access to content. He concluded that the process to identify critical databases is clearly spelt out in law.

Ms Vos said that the DG had emphasised that government was not interested in accessing the content. The IFP had concerns about this and had an amendment to make it clear that the content would not be accessed.

The Chair asked if there were any amendments to Clause 54. There were none.

Ms Vos suggested that in Clause 55(2)(c), the full-stop at the end of the sentence be changed to a comma and the words ' excluding the disclosure of the contents of such database' be inserted to ensure that there would be no accessing of the contents.

The Chair said that the amendment must be crafted in such a way to ensure that the cyber inspectors can still do their job in terms of Clause 58. The Chair asked the State Law Adviser if the amendment would prevent the cyber inspectors from acting in terms of Clause 58.

Adv Kellner said that it would not. Clause 55 applied to registration and Clause 58 allowed the inspectors to do an audit to see if the Act is complied with.

Mr Abram (UDM) felt that Clause 55 only referred to registration and there was no need to complicate it with the amendment.

Mr Magashule (ANC) said that Ms Vos and everyone was saying the same thing and it was just a question of formulating the amendment.

Ms Vos wanted to clarify her position in that she did not want private persons to be obliged to hand over details of their business to persons in the department.

Adv Kellner said that the chapter does not entitle anyone to access the details on the critical database. Clause 58 only allows an audit to evaluate if there is compliance with the chapter, i.e. to see if the registration is correct. He added that in terms of Clause 55(2)(c), when they inspect to see if the general description of the categories and types of information stored on the database is the same as indicated on the register, the inspectors might have to access the content.

The Chair said that nobody wants the details of the database to be on the register. So he asked the members if something to that effect can be included in the chapter. The Chair pointed out that the DG did say that there is no interest in accessing the contents.

Mr Lekgoro (ANC) said that Bill did not say that.

The Chair replied that in that case, members were not agreeing with Ms Vos. He adjourned the meeting for a few minutes for members to caucus.

On resumption of the meeting the Chair asked Mr Magashule if he and Ms Vos had reached an agreement.

The reply was that Ms Vos had agreed to abandon her amendment and would go to court if any problems should arise.

In reply to the chair asking for confirmation that the clause does not allow access to the content of the database, Adv Kellner replied that nowhere in the chapter is access given to government.

The Chair put each clause to the members. The DA and IFP opposed Clause 55. The clause was agreed to. Classes 56 - 59 were agreed to.

Chapter 12 - Cyber Inspectors
Ms Smuts said this was a sloppily written chapter. She recommended that the word 'activities' be removed from Clause 85(1)(b)(i) and (c)(i).

The Chair put Clause 84 before the committee before the amendments to Clause 85 were considered. The DP noted their objection to the clause and it was agreed to.

Clause 85 - The Chair asked the State Law Adviser for his interpretation of 'investigation of activities'. The Chair wanted to know if Clause 85(1)(b)(i) was in conflict and if clause (c)(i) was in conflict with a clause in chapter six.

The State Law Adviser replied that it was not in conflict.

Ms Smuts pointed to Clause 85(1)(a) and said that there urgent pressures in South Africa and she could not understand why officials are going to be paid to monitor the web and watch kiddy porn all day.

It was noted that this had been previously discussed and the ANC moved for the adoption of the clause. The DP noted its objection and the IFP objected for civil liberty reasons.

Clause 86 - The ANC moved for its adoption. The DP and IFP objected but the clause was agreed to.

Clause 87 - In Clause 87(1) the Law Advisor said that 'any court' must be changed to 'a magistrate or judge'. This amendment was agreed to. The clause was agreed to with the amendment.

Clause 88 was agreed to.

Chapter 13 - Cyber Crime
Ms Smuts referred to the SAPS submission that said cyber crime is a big problem and much more is needed that what is contained in this chapter. The SAPS has asked the committee not to pass this chapter but to wait for the SA Law Commission to finish its work on this matter. Ms Smuts had spoken to the Law Commission and they had said the same thing. If Parliament has passed a law - then the Law Commission stops its work because parliament has pronounced itself on the matter. She requested that if the committee does pass the chapter then the committee report should ask the Law Commission to continue their work on cyber crime. She added that the chapter is carefully drafted and had two proposed amendments should the committee decide to pass the chapter.

The Chair said that the SAPS and the SALC submissions are the same and advised that he would mention it in his debate but was unsure about including it in the report.

Ms Smuts replied that the Justice Committee had done something similar in the past, where the SALC was requested to continue their work.

The Chair advised that he will consult on this.

The DP moved for the deletion of the chapter. The motion was rejected. The ANC moved the adoption of clause 89. The clause was agreed to.

Clause 90 - Ms Smuts proposed that in Clause 90(3) the word 'component' be included because a person could unlawfully possess a computer programme as well as components. The committee agreed to this amendment and it was agreed to as amendment.

Clause 91 - Ms Smuts said that she has never seen the use of the word 'fake' in legislation and suggested that 'unauthentic' be used.

The Chair asked the State Law Adviser for his opinion.

Adv Kellner replied that fake is fake.

Clause 91 was put before the committee and it as agreed to.

Clause 92 was put before the committee and it was agreed to.

Clause 93 - The State Law Adviser pointed out a technical amendment. The reference to Clause 33(2) must be replaced by Clause 38(3) because the penalty for the 33(2) offence is included under the clause itself. The clause was put before the committee and agreed to as amended.

Ms Smuts commented that the ANC will not even listen to the SAPS.

Chapter 14 - General Provisions
The Chair put Clause 94 before the committee and it was agreed to.

The Chair put Clause 95 before the committee and it was agreed to.

Clause 96 limits the governments liability and Ms Smuts wanted to know why the committee should allow the government to get off the hook when they do something negligently.

Adv Kellner replied that the clause does not give the State anything it does not already have.

The Chair put Clause 96 before the committee. The DP and IFP noted its objection. The clause was agreed to.

Clause 97 was put before the committee and agreed to.

Clause 98 was put before the committee and agreed to.

The Chair concluded the meeting by saying that Chapter 10 would be revisited tomorrow morning when the ANC proposal is ready to be circulated.

The meeting was adjourned.

 

 

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