Some of the provisions in the Regulation of Interception of Communications Act (Rica) could prove impossible for ISPs to comply with.
The Internet Service Providers’ Association (ISPA) has welcomed renewed focus by the Department of Justice on the implications that the customer registration requirements of Rica hold for telecom services providers besides the mobile operators – although it believes that many RICA provisions remain impractical, perhaps even impossible, for ISPs to implement.
Dominic Cull, regulatory advisor to ISPA, comments: "We remain concerned about the obligations that Rica places on our members in terms of customer registration and verification.”
“It is unfortunate that the Department continues to insist that licensees acting as Internet access providers personally verify the documents which their customers are required to submit before a service can be activated. ISPA has previously written to the Department to explain the challenges this requirement will pose for our members, particularly those who do not have a national retail presence."
The primary difficulty with the obligation is that Internet access providers are generally online businesses in the sense that they sign up customers and maintain customer relationships online.
“An ISP may be based in Cape Town but provide Internet access services to the whole of South Africa. It is not clear to ISPA how such an ISP will be able to verify Rica documentation in person where its customers are hundreds or thousands of kilometers away.”
Cull drew a distinction between the requirements placed on mobile cellular providers who have a pervasive national retail presence and small and niche Internet access providers who do not.
“Notwithstanding this national presence and the vast amounts of money which the mobile providers are throwing at Rica registration, it seems clear that this is being done at a massive cost to those providers and there are indications that the exercise will not be completed within the 18-month deadline set by Rica.
“If the mobile providers are struggling to comply with personal verification then it follows that personal verification will be close to impossible for ISPs to comply with. Most of our members have a purely online relationship with their customers since they do not provide a physical component of their service such as a SIM card.”
ISPA notes that the Department of Justice is taking a number of steps to accommodate the concerns ISPA has expressed about Rica's customer registration and verification process in the past. ISPA acknowledges, in particular, the amendments to section 39 of Rica that will allow ISPs to use agents to verify customer documents.
“While this represents a step in the right direction it remains ISPA’s view that the imposition of a personal verification obligation will have a chilling effect on Internet access and competition in South Africa," says Cull.
ISPA’s previous submissions to the Department have highlighted the fact that South Africa has, under the Electronic Communications and Transactions Act of 2002, created a framework for the authentication of documents in electronic format.
"South African law clearly provides for verification of documents in electronic format and ISPA is not sure why this framework is not being used for customer registration under Rica," says Cull.
"ISPA will make further submissions to the Department of Justice in the hope of getting it recognise the difficulties and costs our members will face in meeting Rica obligations in their present form. Nobody's interests will be served by creating an obligation which is impossible to comply with."