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This article participates on the following special index pages:
Interception of Communications Bill - Index of articles
ZISPA
Submission on Interception of Communications Bill 2006
Jim
Holland, Zimbabwe Internet Service Providers Association
(ZISPA)
September 01,
2006
http://www.zispa.org.zw/iocb_main.html
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Introduction
This document represents the views of ZISPA, the Zimbabwe Internet
Service Providers Association, on the Interception
of Communications Bill 2006, which is currently before Parliament.
ZISPA understands
that in many democratic countries there is legislation that provides
a legal basis for the interception of selected communications, in
order to protect national security and to investigate criminal activities.
Such legislation is frequently controversial, as it has to strike
a balance between unfettered monitoring and allowing criminals to
roam free, between what is reasonable in a democratic society and
what is not.
Background
The
proposed Bill follows two previous attempts to legitimise the interception
of communications by the government:
- Sections
98 and 103 of the Posts and Telecommunications Act (No 4/2000),
which provided for the interception of communications if the President
considered it necessary "in the interests of national security
or the maintenance of law and order", and for him to give
service providers "directions of a general character as appear
to the President to be requisite or expedient in the interests
of national security or relations with the government of a country
or territory outside Zimbabwe."
- A draft amendment
to the standard franchise agreement between ISPs and TelOne which
included provisions that required service providers to block "objectionable,
obscene, unauthorised or any other content, messages or communications
infringing copyright, intellectual property right and international
and domestic cyber laws, in any form or inconsistent with the
laws of Zimbabwe". Service providers were required to "provide,
without delay, all the tracing facilities of the nuisance or malicious
messages or communications . . . to authorised officers of TelOne
and Government of Zimbabwe/State Government, when such information
is required for investigations of crimes or in the interest of
national security. Cyber Laws as and when framed shall be applicable."
It also stated: "The use of the network for anti-national
activities would be construed as an offence punishable under the
Zimbabwe Law or other applicable law."
The Law
Society challenged the constitutionality of Sections 98 and 103
of the Posts and Telecommunications Act in the Supreme Court, especially
in so far as they potentially violated the right to lawyer/client
privilege and the right to freedom of expression. They won the case
when the Court ruled in March 2004 that these Sections violated
Sections 18 (the right of an accused person to a fair trial) and
20 (the right to freedom of expression) of the Constitution.
With regards
to the proposed amendment to the Internet Service Franchise Agreement,
the ISPs attempted to seek clarification from TelOne over the wording
of the amendment as it seemed extremely broad and undefined in its
scope, and referred to "Cyber Laws" that did not exist.
As no response was received from TelOne, ZISPA members did not sign
the amendment.
Provisions
of the Bill
The
Interception of Communications Bill states that its purpose is:
- To
establish an interception of communication monitoring centre and
for the appointment of persons to that centre whose function shall
be to monitor and intercept certain communications in the course
of their transmission through a telecommunication, postal or any
other related service system
The Bill
says nothing about the purpose for which the communications shall
be intercepted, although it is implicit that the data may be used
as evidence in criminal proceedings.
Key provisions
of the Bill of interest to telecommunications service providers
are:
- The Minister
of Transport and Communications may issue warrants for the interception
of communications on application by the Chief of Defence Intelligence,
the Director-General of the President’s Department of National
Security (the CIO), the Commissioner of the Zimbabwe Republic
Police and the Commissioner-General of the Zimbabwe Revenue Authority
or by any nominee of any of the above. The applications should
normally be in writing, but in urgent or exceptional circumstances
oral applications can be made.
- Warrants
may be issued where the Minister has reasonable grounds to believe
that "a serious offence has been or is being or will probably
be committed or that there is threat to safety or national security
of the country" or that "the interests of the country’s
international relations or obligation(s) are threatened".
- Warrants
are valid for a period of up to 3 months but may be extended by
further periods of up to a month at a time, indefinitely.
- Service
providers are required to install at their own cost "hardware
and software facilities and devices to enable interception of
communications"; to store communication-related information;
to establish connections to the monitoring centre to route the
intercepted communications to the centre; and also to store detailed
identity information on all their customers.
- Service
providers are prohibited from disclosing any information about
warrants they receive and communications intercepted except to
authorised persons.
- Authorised
persons are entitled to order the disclosure of security keys
used to protect information where considered necessary on grounds
of national security, preventing and detecting crime, and in the
interests of the economic well-being of Zimbabwe.
- Penalties
for failure to comply with provisions of the Bill range from a
fine to from three years to five years maximum imprisonment.
- Aggrieved
parties may appeal first to the Minister, and then to the Administrative
Court.
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