Intellectual Property Rights from Publicly Financed Research and
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Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (Act 70 of 2002)Chapter 5 : Interception capability and compensation30. Interception capability of telecommunication services and storing of communication-related information |
| (1) | Notwithstanding any other law, a telecommunication service provider must— |
| (a) | provide a telecommunication service which has the capability to be intercepted; and |
| (b) | store communication-related information. |
| (2) | The Cabinet member responsible for communications, in consultation with the Minister and the other relevant Ministers and after consultation with the Authority and the telecommunication service provider or category of telecommunication service providers concerned, must, on the date of the issuing of a telecommunication service licence under the Electronic Communications Act, to such a telecommunication service provider or category of telecommunication service providers— |
| (a) | issue a directive in respect of that telecommunication service provider or category of telecommunication service providers, determining the— |
| (i) | manner in which effect is to be given to subsection (1) by the telecommunication service provider or category of telecommunication service providers concerned; |
| (ii) | security, technical and functional requirements of the facilities and devices to be acquired by the telecommunication service provider or category of telecommunication service providers to enable the— |
| (aa) | interception of indirect communications in terms of this Act; and |
| (bb) | storing of communication-related information in terms of subsection (1)(b); and |
| (iii) | type of communication-related information which must be stored in terms of subsection (l)(b) and the period for which such information must be stored, which period may, subject to subsection (8), not be less than three years and not more than five years from the date of the transmission of the indirect communication to which that communication-related information relates; and |
| (b) | determine a period, which may not be less than three months and not more than six months from the date on which a directive referred to in paragraph (a) is issued, for compliance with such a directive, and the period so determined must be mentioned in the directive concerned. |
| (3) | A directive referred to in subsection (2)(a)— |
| (a) | must, where applicable, prescribe the— |
| (i) | capacity needed for interception purposes; |
| (ii) | technical requirements of the systems to be used; |
| (iii) | connectivity with interception centres; |
| (iv) | manner of routing duplicate signals of indirect communications to designated interception centres in terms of section 28(1)(b)(i); and |
| (v) | manner of routing real-time or archived communication-related information to designated interception centres in terms of section 28(2)(a); and |
| (b) | may prescribe any other matter which the Cabinet member responsible for communications, in consultation with the Minister and the other relevant Ministers and after consultation with the Authority, deems necessary or expedient. |
| (4) | Notwithstanding any other law, agreement or licence, a telecommunication service provider must, subject to section 46(1)(ii), at own cost acquire, whether by purchasing or leasing, the facilities and devices determined in a directive referred to in subsection (2)(a). |
| (5) | Any costs incurred by a telecommunication service provider under this Act in— |
| (a) | Enabling— |
| (i) | a telecommunication service to be intercepted; and |
| (ii) | communication-related information to be stored, including the investment, technical, maintenance and operating costs; and |
| (b) | complying with section 28(1)(b)(i) and (2)(a), must be borne by that telecommunication service provider. |
| (6) | A directive issued under subsection (2)(a) may in like manner be amended or withdrawn. |
| (7) | The Cabinet member responsible for communications must, within two months after the fixed date and in consultation with the Minister and the other relevant Ministers and after consultation with the Authority and a telecommunication service provider or category of telecommunication service providers to whom, prior to the fixed date, a telecommunication service licence has been issued under the Electronic Communications Act— |
| (a) | issue a directive referred to in subsection (2)(a) in respect of such a telecommunication service provider or category of telecommunication service providers; and |
| (b) | determine a period, which may not be less than three months and not more than six months from the date on which a directive referred to in paragraph (a) is issued, for compliance with such a directive, and the period so determined must be mentioned in the directive concerned. |
| (8) | If a period of more than three years has been determined in terms of subsection (2)(a)(iii), the Cabinet member responsible for communications may, upon application by the telecommunication service provider concerned and in consultation with the relevant Ministers, reduce that period to a period which may not be less than three years by issuing an amended directive under subsection (2)(a). |
