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Interception of Communications Bill 2006: An ISP's perspective
Jim Holland, MANGO Internet Service Provider
April 13, 2006

Introduction
This presentation represents the personal views of one Internet Service Provider (MANGO) in relation to the above Bill, but their concerns are widely felt amongst the local Internet community.

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.

The unanimous judgment of the Supreme Court of Zimbabwe was delivered by the Chief Justice, the Honorable Mr Justice Chidyausiku, and agreed entirely with the sentiments and concerns of the Law Society of Zimbabwe and held that: -

"the sanctity of lawyer/client privilege is largely applicable in the domain of litigation or court proceedings and is not constitutionally guaranteed. However, the breach of the lawyer/client privilege almost invariably led to the violation of one's entitlement to a fair trial guaranteed under Section 18 of the constitution;

"although the protections of the Constitution to the freedom from interference with correspondence or other communications were not absolute rights and they may be restricted or circumscribed, the unfettered power conferred upon the president to intercept correspondence and communications were too broad and over reaching to be reasonably justified in a democratic society.

"In making this ruling and observation, the Chief Justice noted that there were in fact no limitations or restrictions whatsoever to the authority of the President, no guidance to affected citizens as to how they could avoid the consequences of the provisions complained of and no legal resource or safeguard for the innocent." [Summary taken from a Law Society report on the judgement.]

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 also seemed extremely broad and undefined in its scope, and referred to "Cyber Laws" that did not exist. The reference to "anti-national activities" without any definition or reference to law was particularly disconcerting, and is an indication of the mindset that has led to the current proposed legislation. As no response was received from TelOne, ZISPA members did not sign the amendment.

Provisions of the Bill
While no official copy has yet been published, the draft Interception of Communications Bill currently in circulation 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, but it is implicit that they 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 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.

Concerns of Service Providers
The draft Bill raises many issues of concern to service providers, given that it will legalise the monitoring of e-mail and Web downloads by a targeted individuals or organisations. It will also allow any other form of Internet service to be intercepted as well, including instant messaging, VOIP calls, and financial transactions in particular.
Specific concerns are:

• Private and confidential personal information, as well as confidential commercial or financial information may be intercepted that could be abused in many ways.
• There is a serious danger of political abuse of the provisions of the Bill to target political opponents of the government, or indeed of members of rival factions of the ruling party. Human rights organisations and NGOs also would seem to be at particular risk as they are already regarded in many cases as being enemies of the state.
• The Bill will stifle freedom of expression, and frighten people from undertaking perfectly legal communications that they fear could be intercepted and used against them. In the past this fear has resulted in chain letters asking people not to forward any e-mails with political comment or political jokes.
• There is no provision for any judicial or parliamentary oversight of the implementation of the Bill as a check on possible abuse by the Minister or his officials, especially given that the Minister is extremely wide discretionary powers to determine whether a warrant may be issued.
• The Bill is very vague in its provisions, and extremely broad in scope, without precise definitions of terms such as "national security", "national economic interests", or "interests of the country's international relations or obligations".
• Warrants can be issued to intercept communications even when no criminal activity is suspected, but simply on political grounds such as when "the interests of the country's international relations or obligation (sic) are threatened". This means that any organisation involved in legal international lobbying considered hostile to the government could be targeted.
• There is no guarantee that communications of the targeted subject that are not related to the matters raised in the application for the warrant will not be intercepted, or that communications of totally innocent third parties will not be intercepted at the same time.
• Service providers are not going to be able to assure their clients that normal personal and business communications will be free from interception and possible abuse, to the detriment of secure financial transactions in particular, and indeed are not even going to be able to advise their clients on what they should not be doing to avoid becoming subject to the provisions of the Bill.
• Service providers are going to have to bear the potentially extremely high capital and forex costs of the necessary hardware and software, whose requirements will not be known until the associated regulations are published in due course. These costs could be sufficient to drive smaller providers out of business.
• Service providers are going to have to undertake the massive and expensive task of obtaining detailed identification details for all their current and future clients.
• There are no details provided as to what communications data will have to be stored by service providers, and for how long, let alone any information on the purposes for which all this data plus the content of intercepted communications will be used by the governmen
• Section 9 of the Bill makes provision for authorising the use of data that has been obtained by unlawful interception of communications, provided that the court retrospectively approves such use in criminal proceedings.
• Legislation of this kind does nothing to improve the regulatory environment by dealing with issues of real concern, such as using the Internet to hack into computer systems or purvey child pornography, but simply adds to general demoralisation, causing alarm and despondency, and deters investment in the sector, especially in the area of e-commerce. As a result, the country will lag even further behind its competitors.

Responses to the Bill
This appears to be a most invidious piece of legislation that should be strongly opposed. It is yet another nail in the coffin of an already struggling telecommunications sector. Measures that should be considered by affected parties in opposition to this legislation include:

• Informing all interested parties, especially industrial and commercial organisations, trade union and non-government organisations about the dangers of the Bill with a view to forming a consolidated lobbying group to oppose the passage of this Bill in its current form.
• Making presentations to the Parliamentary Portfolio Committee
• Lobbying members of Parliament
• Holding public meetings and presentations about the contents of the proposed Bill
• Publicising the issues relating to this legislation locally and internationally using the media and especially the Internet.
• If the Bill is passed by Parliament, then petitioning the President not to sign it into law (a tactic that succeeded in the case of the Private Voluntary Organisations Bill)
• If the Bill is signed into law, then challenging in the courts all warrants issued to and demands made upon service providers in terms of the Act and associated regulations.
• Taking up the human rights issues with the African Commission for Human Rights on the grounds that the legislation violates the African Charter on Human and People's Rights.
• Providing information on legal methods of ensuring the confidentiality of communications - especially the use of encryption, including the use of encrypted web-mail services such as HushMail, and third-party proxy services when browsing the web.
  

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