Carol Paton
15 September 2002
Johannesburg — Important implications for police and private detectives
THE Regulation of Interception of Communications Bill, which Parliament is set to pass on Tuesday, will set new rules for the bugging and interception of all communications - both "direct" (conversations) and "indirect" (phone calls, SMS's, e-mails, faxes or items sent in the post).
The Bill not only tightens up the rules about bugging but will also have important consequences for law enforcement officers, private investigators and employers.
So who can bug or record whom and why?
Only law enforcement officers may intercept communications and only when they have obtained an order from a judge.
To get an order they will have to convince a judge that a serious offence has been or will be committed and that there is an actual or potential threat to public health, safety or national security. But an exception is made in the case of suspected organised crime or terrorists, whose communications may be monitored without having to demonstrate that all the conditions apply.
The order is valid for three months after which the applicant would have to re-apply.
A law enforcement officer can also get permission from a judge to get access to both the ongoing call information as well as call records if the conditions above are satisfied.
This will allow police, for instance, to constantly monitor the activities of people suspected of being part of organised crime or terrorism.
Law enforcement officers, provided they have permission from a judge, will be able to enter premises to install listening devices or intercept postal articles.
There are conditions, though, when permission from a judge is not needed before the bugging takes place. For instance:
Anyone can record their own conversations with anyone else. They are not obliged to tell the other person they are being recorded.
A person could also give their consent to have their own conversation recorded by a third party - for example, a police officer or a private investigator.
For instance, a person involved in a marital dispute could get a private investigator to record a conversation he or she has with his/her spouse.
But bugging someone without their permission is illegal.
In the case of an emergency, such as a kidnapping, where there are reasonable grounds to believe that someone may be seriously harmed, telecommunication service providers must comply with requests from law enforcement officers to route duplicate signals of the suspects' phone calls to an interception centre.
They must also provide information about the calls being made - their location and destination.
Because of the urgency, these requests can be made orally but must as soon as possible afterwards be followed up with an affidavit to a judge.
The same rules and conditions apply in the case of an emergency where law enforcement officers are trying to locate someone whose life is in danger - for instance, someone lost on a mountain or at sea.
A business can record any communication that takes place during the course of conducting its business.
But employees whose communications are recorded must be informed and give their consent.
The law also imposes stricter control on the ownership of cellphones.
When purchasing a cellphone consumers will have to present their identity documents and copies of these will be retained by the businesses selling the phones.
The loss, theft or even destruction of a cellphone or SIM-card must be reported to the police and the penalty for not doing so will be severe.
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