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  • 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

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    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.

    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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