I am a RICA criminal

The RICA law requiring all cellular SIM cards to be registered came into effect on 1 July. ARTHUR GOLDSTUCK tests the law and confesses to a new crime…

As of yesterday, I am a criminal.

I brazenly walked into a large CNA outlet, stepped up to the cellphone service kiosk, and without any form of identification demanded two starter packs, one with a Vodacom phone number and one with MTN. In full sight of anyone who bothered to look, I took the packs to the cashier and handed over R1,98 to cover the 99c cost of each pack.

It gets worse.

Once I got home, in total secrecy, I slipped the SIM cards from each provider into two old phones, and switched them on. The MTN card worked immediately, and I was able to begin receiving calls without any further ado. The Vodacom card required me to dial 100 to activate it, and I could then start receiving calls on that phone too.

In the above process, I violated the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) about half a dozen times – that I know about. The law came into effect on 1 July this year, even though it had been passed back in 2003. Various impracticalities, mainly relating to the process of identifying cellphone users and SIM card owners, delayed its implementation. Following various amendments, it now criminalises a range of acts of commission and omission that previously were normal everyday practice.




Anyone buying a cellphone or a SIM card is required to provide full names and surname, ID number or passport number, and proof of physical address. This could be by means of any document that includes your name and residential address, including bank statements, municipal rates, as long as they are not older than three months, or insurance policies, lease or rental agreements and TV or vehicle licences.

But there’s a loophole as wide as a cellular base station: to quote The Times quoting the Minister of Justice, “those in an informal residence should provide the address of a school or church closest to the area in which they live” The latter loophole also includes retail stores.

If I were a bona fide, fake card carrying criminal, instead of the accidental variety, I would thank the Minister on bended knees. Now I can just take my fake ID into a retail store, and give that very store I am in as my address!

Of course, the loophole is essential to keep those without formal housing linked in to the communications network, but it means that anyone who plans to commit a crime using a cellphone can and will simply pretend to be living “informally”.

It means that, as with gun laws, the innocent are closely monitored and tightly policed, while those of criminal intent remain outside the reach of the law.

Penalties

The purpose of the law is noble, as often is the case with well-intentioned legislation that falls apart under the burden of reality: It enables authorities to intercept cellular communication in order to track criminals more effectively.

But the absurd penalties it suggests for those who fall foul of the law suggest that it is a big stick with which the authorities want to beat everyone into line. Here is the stick:

Anyone who “sells or in any other manner provides, any cellular phone or SIM-card to any other person” and fails to get that person’s full names, identity number and address and a photocopy of their ID; is guilty of a crime.

Anyone whose “cellular phone or SIM-card is lost stolen or destroyed”, or “any other person who was in possession or had control thereof when it was so lost stolen or destroyed” and who does not “within a reasonable time after having reasonably become aware of the loss, theft or destruction of the cellular phone or SIM-card, report such loss theft or destruction in person or through a person authorised thereto by him or her to a police official at any police station”; is guilty of a crime.

In both cases, the criminal is liable to a fine not exceeding R2 000 000 or to imprisonment for a period not exceeding 10 years. Thank goodness there is a cap on the sentences.

But wait, there’s more. You face the same penalty if you are one of those scoundrels who “intentionally and unlawfully, in any manner modifies, tampers with. alters, reconfigures or interferes with, any telecommunication equipment, including a cellular phone and a SIM-card, or any part thereof”; or if you are one of those low-lifes who “reverse engineers, decompiles, disassembles or interferes with, the software installed on any telecommunication equipment, including cellular phone and a SIM-card, by the manufacturer thereof; or allows any other person to perform any of the acts referred to”.

The wireless application service provider (WASP) industry, which exists to tamper with equipment and come up with intelligent new solutions as a result, is no doubt consulting its attorneys as we speak. Ordinary individuals, though, who indulge in thuggish behaviour like giving an old phone to a friend or in the vandalism of mutilating a SIM card will probably have to appeal to the Constitutional Court. Should the letter of the law be applied, that is no doubt exactly where these provisions will arrive for deliberation.

Registration

Aside from such provisions undermining the credibility of the law, there are also practical concerns with the registration of all existing SIM cards.

First, there is the obvious initial registration barrier: There are a total of about 42-44 million pre-paid SIM cards in use in South Africa, and all of these have to be registered. It’s unlikely the cellular networks have the physical resources to achieve that in the next 18 months, if ever. The nature of pre-paid also means that it is highly unfeasible that users will be able to comply with Rica requirements. After all, these are not the equivalent of access to a bank account; they are the equivalent of access to a call box.

Former Vodacom CEO Alan Knott-Craig told Brainstorm magazine in 2006 that millions of South Africans who use prepaid cellphones work in the informal sector and many live in far-flung rural areas.

“They are completely dependent on their prepaid cellphones to find work and to remain in contact with their families. Depriving them of the ability to communicate via cellular telephony is to once more condemn them to the world of the ‘absolutely have-nots`,” he said.

“It is highly unlikely that the registration of prepaid cellphone customers will bring down the crime rate as it is easy for criminals to get a SIM card from a neighbouring country, commit the crime and throw away the phone, without ever registering it. Although crime needs to be fought with all our might, this proposal needs more careful thought in terms of its unintended consequences before becoming law.”

Such comments did result in the Act being amended, but more in order to reduce the burden on networks than on consumers. As it is, Vodacom was an accomplice in the process of activating my new, illegal phone number. Eighteen months from now, if I haven’t confessed to my crime and handed over all the evidence of my existence, the number will be deactivated.

Stretching the Law

But in the meantime, there is the law enforcement issue. The major problem with RICA requirements is that they do not take into account the sheer immensity of the registration task, and do not allow for a broad scale of penalties that are commensurate with the “crime”, as is the case, for example, with traffic offences. This means that failure to report the loss of a 99c SIM card is regarded by the law as almost as severe a crime as failure to report the loss of a firearm. It requires almost the same level of paperwork, and therefore manpower, as the loss of a firearm.

If by some chance we do have all users registering their SIM cards and giving full details every time they get a new SIM card, it will be an absurd waste of the already-stretched resources of the SA Police Services to require admin staff to handle every lost SIM card. The truth is, many pre-paid users simply buy a new starter pack for 99c when their existing airtime runs out, as they often get a better deal on a new starter pack than on recharging an existing one. They can hardly be expected to keep track of every SIM card they ever own and, should they lose or destroy one, they can simply claim they did not know they had lost it.

A privacy affair

Then there are the privacy concerns.

Consumers have every right to be concerned, as not enough effort has been made so far to educate the public, resulting in confusion and uncertainty. The Act allows a wide range of law enforcement agents, under a wide range of circumstances, to access archived information about calls as well as to listen in on calls. Mostly, this requires an application to a judge. But the fine print suggests that, where law enforcement officers believe they need that access urgently to prevent bodily harm, they can bypass the usual process.

To quote, where “it is not reasonably practicable to make an application in terms of section 16(1) or 13jl) for the issuing of an interception direction or an oral interception direction; and the sole purpose of the interception is to prevent such bodily harm, any communication or may orally request a telecommunication service provider to route duplicate signals of indirect communications specified in that request to the interception centre designated therein.”

The interception is only justified where it is intended to prevent bodily harm, and the Government has assured the public it won’t abuse the provisions, but not enough has been done to communicate the purpose, the process and the circumstances to the public.

The law in itself protects privacy, and does indicate penalties for unwarranted violation of privacy – R5-million good enough for you? – but no process for grievances regarding violation of privacy.

All in all, the focus of a positive law designed to stop criminals has focused so heavily on regulating formerly law-abiding citizens, that it has already created huge misconceptions about the intentions of the law.

Clearly, the test case that criminalises an individual merely for losing or passing on a SIM card will also be the test case that makes an ass of this law.

(Acknowledgement: This column could not have been written without the inspiration of Toby Shapshak, the original Skype Criminal)

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