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Cape Town - Mobile operators in SA have no right to report government intrusions into their network, a legal expert has said.
The questions emerged after reports that UK-based Vodafone reported that a number of countries are engaged in a data mopping up operations on its networks.
Vodacom in SA is a Vodafone subsidiary, but the operator could not reveal details of the South African government's intrusion into its network.
However, Rica, or the Regulation of Interception of Communications and Provisions of Communication-Related Information Act, 70 of 2002, specifies what any telecoms provider may say about government agency intrusions.
"The Act sets out the ability of mobile operators (telecommunication service providers) to reveal government requests to the public," Nozipho Mngomezulu, a partner at Webber Wentzel told News24.
Court order
In particular, Rica forbids any employee of a telecoms operator from disclosing that "a communication is being or has been or will probably be intercepted" among others, as well as whether metadata is being collected.
Metadata refers to non-personal data like when a phone call was placed, to what number, for how long. It may also include details of internet history, e-mail recipients and instant message contacts.
"A mobile operator could therefore not publically reveal that the government has requested access to its networks," said Mngomezulu.
In practice Rica states that law enforcement officials would have to provide a court order to comply mobile operators to reveal personal data or intercept communications.
The law forbids mobile operators from revealing whether the government has requested personal information or intercepted data. (Duncan Alfreds, News24)
"In the normal course of events, an agency would be required to produce either an original or copy of the interception directive. However, there are specific instances where producing the inception directive would not be necessary," Mngomezulu explained.
These specific instances refer to an imminent threat to someone's life such as in the case of a kidnapping, for example.
However, regardless of the nature of the interception order, the mobile operator is forbidden from revealing that one has been issued as well as to what extent it complied.
Local laws
Given that Vodacom is the subsidiary of an international firm, the company still has to adhere to local laws unless there are bilateral agreements in place.
"A local subsidiary would be bound by the laws of South Africa. A local subsidiary would not be bound by international law, unless South Africa has specifically signed and ratified international treaties or conventions pledging compliance with such treaties and/ or conventions," said Mngomezulu.
The Vodafone revelations could potentially hurt trust that people may have that their personal information on mobile devices is secure.
- Follow Duncan on Twitter
The questions emerged after reports that UK-based Vodafone reported that a number of countries are engaged in a data mopping up operations on its networks.
Vodacom in SA is a Vodafone subsidiary, but the operator could not reveal details of the South African government's intrusion into its network.
However, Rica, or the Regulation of Interception of Communications and Provisions of Communication-Related Information Act, 70 of 2002, specifies what any telecoms provider may say about government agency intrusions.
"The Act sets out the ability of mobile operators (telecommunication service providers) to reveal government requests to the public," Nozipho Mngomezulu, a partner at Webber Wentzel told News24.
Court order
In particular, Rica forbids any employee of a telecoms operator from disclosing that "a communication is being or has been or will probably be intercepted" among others, as well as whether metadata is being collected.
Metadata refers to non-personal data like when a phone call was placed, to what number, for how long. It may also include details of internet history, e-mail recipients and instant message contacts.
"A mobile operator could therefore not publically reveal that the government has requested access to its networks," said Mngomezulu.
In practice Rica states that law enforcement officials would have to provide a court order to comply mobile operators to reveal personal data or intercept communications.
The law forbids mobile operators from revealing whether the government has requested personal information or intercepted data. (Duncan Alfreds, News24)
"In the normal course of events, an agency would be required to produce either an original or copy of the interception directive. However, there are specific instances where producing the inception directive would not be necessary," Mngomezulu explained.
These specific instances refer to an imminent threat to someone's life such as in the case of a kidnapping, for example.
However, regardless of the nature of the interception order, the mobile operator is forbidden from revealing that one has been issued as well as to what extent it complied.
Local laws
Given that Vodacom is the subsidiary of an international firm, the company still has to adhere to local laws unless there are bilateral agreements in place.
"A local subsidiary would be bound by the laws of South Africa. A local subsidiary would not be bound by international law, unless South Africa has specifically signed and ratified international treaties or conventions pledging compliance with such treaties and/ or conventions," said Mngomezulu.
The Vodafone revelations could potentially hurt trust that people may have that their personal information on mobile devices is secure.
- Follow Duncan on Twitter
