There are a number of Expenses before Parliament that have the very real prospective to restrict the 100 % free flow of details and expressions on digital emails systems, while allowing the condition to observe and identify certain online emails.
This is according to Kathleen Grain, home of technology, media and telecoms exercise at Cliffe Dekker Hofmeyr, who points to the tracking of emails using Googlemail, Facebook or myspace, Tweets, and Skype, without a guarantee or any way of legal management.
The unpleasant sister
The “ugly sister” of the Protection of State Information Invoice (State Information Bill), the set up General Intellect Regulations Variation Invoice (GILAB) also known as the ‘Spy Bill’, is being discussed by the Ad Hoc GILAB Panel this month.
GILAB suggests that the National Ideal Intellect Act, No 39 of 1994 be revised to allow the State Protection Organization to gather and analyze so-called “foreign alerts intelligence” using the “intelligence main concerns of the Republic”.
Foreign alerts intelligence is determined in GILAB as being intelligence resulting from the interception of electro-magnetic, sound and other alerts and contains any interaction that hails from outside the boundaries of the Republic or goes through or ends in the Republic.
The intelligence main concern of the republic is unexplained and undefined expression.
The Control of Interception of Communications and Supply of Communication-Related Information Act, No 70 of 2002 (RICA) provides that, topic to certain exclusions, no individual may deliberately identify or attempt to identify, at any position in the Republic, any interaction in the course of its incident or transmitting.
RICA provides that security solutions may not identify digital emails without legal authorization.
On the face of it, it would seem that RICA would implement to all digital emails regardless of its source.
In exercise, however, the Reverend of State Protection and the State Protection Organization have made it generously clear that they respect RICA as having household application only and that large tracking and interception of emails of international emails (which would include programs with web servers based in international countries such as Googlemail, Skype, Tweets and Facebook) may take position without a guarantee or any other way of legal management.
There is no show provision in GILAB to the effect that the collection and research of international alerts intelligence be topic to RICA.
Electronic emails, by its very nature, bidirectional. The use by individuals in South Africa of any applications/services which have web servers located abroad or the return of details with a individual abroad certainly results in alerts being sent that are of international source even if the interaction is started in South Africa.
The right to comfort is a worldwide human right that is secured by our Structure. It relates to any individual within South Africa and to South Africans outside the Republic’s boundaries.
Given the position taken by condition intelligence components that RICA does not implement to international emails, GILAB should particularly condition that the interception of international alerts intelligence is topic to RICA.
Failure to topic the interception of international indication intelligence to RICA will leave the door open to unconstitutional uses upon the right to comfort.
In the lack of shields against illegal infringements of the right to comfort in the perspective of international alerts intelligence will certainly result in the restriction of the right to freedom of expression.
The unpleasant cousins
Provisions of both the Separate Communications Power of South Africa Variation Invoice 2012 and the Electronic Communications Act Variation Invoice 2012 also contain conditions that, if introduced, will possibly limit the right to freedom of expression.
In this perspective the Expenses can be thrown as the unpleasant relatives to the State Intellect Invoice and GILAB.
The lifestyle of a private regulator of digital emails (which contains broadcasting) supports the right to freedom of expression.
Electronic emails solutions and transmitting solutions afford individuals in every walk of life a fast and reliable indicates of receiving and/or trading expressions and details.
Section 192 of the Structure assures independent dangerous transmitting in the public interest to ensure equity and variety of opinions generally comprising South African community.
The freedom of Separate Communications Power of Southern Africa (Icasa) is constitutionally assured.
This Constitutional guarantee is confirmed in Icasa’s allowing regulation which provides that Icasa is independent topic only to the Structure and the law and requires Icasa to perform its functions without worry, favor or tendency.
Icasa must, in addition, function without any governmental or commercial disturbance.
In conditions of present regulation, Icasa is limited to consider the Minister’s policy guidelines and directives and, accordingly has attention to implement these guidelines and directives.
Proposed changes to the Electronic Communications Act will need ICASA to implement ministerial guidelines and directives.
Also with regards to present regulation, Icasa is required to represent the Problems and Conformity Panel that deals with complaints and the process of non-compliance on the part of licensees.
The Problems and Conformity Panel creates suggestions to Icasa that it may, in its only attention, accept or decline.
Proposed changes to the Icasa Act offer for the organization of a Problems and Conformity Percentage that will substitute the Problems and Conformity Panel. In conditions of the Icasa Invoice, the Reverend (and not Icasa) must set up the new Problems and Conformity Percentage and designate a chair.
If the Icasa Invoice is introduced ICASA’s freedom will be usurped by the fact that the Problems and Conformity Percentage will be motivated to need Icasa to change or revoke permits.
Whereas the Problems and Conformity Panel currently creates non-binding suggestions to ICASA for its consideration, the Problems and Conformity Percentage is motivated to make choices which would be executed on Icasa.
Absent a private regulator of digital emails, the indicates by which expressions and details are easily interchanged as well as individuals who offer digital emails solutions, network solutions and transmitting solutions will come in contact with prospective governmental disturbance that would restrict the 100 % free return of expressions and details thus restricting the rights to freedom of expression.