By Siphelele Khanyile
The Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) Amendment Bill currently sits on the President’s desk awaiting his signature.
As Parliament kicks into gear with the State of the Nation Address and the Budget Speech, and the country’s attention is largely preoccupied with ‘more important’ Bills like the National Health Insurance Bill (also on the President’s desk), it is worth taking a moment to consider the implications of the RICA Bill.
In its current form, this Bill too has real world impacts on the safety and security, as well as the economic prospects of anyone who conducts any form of activity in South Africa using a SIM card.
RICA was passed in 2002. Among other things, the Bill was enacted as a mechanism to make SIM cards traceable to a specific user, enabling law enforcement to trace registered numbers to those implicated in a crime.
To give effect to this objective, the requirement to RICA your SIM card was implemented – this is the shorthand we commonly use to refer to the verification processes in place to ensure that every SIM card buyer can be identified.
It is almost always the case that legislation passed more than 20 years ago will need reviewing and updating, but this wasn’t the impetus behind the RICA Amendment Bill. Rather, the legislative process was undertaken in compliance with a Constitutional Court judgment on a specific point of law relating to the activities around the monitoring of journalists by law enforcement agencies. But the decision to only focus on those narrow issues raised by the Constitutional Court in the current Bill means that other critical weaknesses that have become apparent over the last two decades will remain unaddressed.
This is a wasted opportunity for which South Africans will continue to pay a high price in terms of sky-high crime rates, including financial and identity theft.
At the heart of the issue is a growing trend of non-compliance with the requirements of RICA in relation to SIM cards. In an effort to maintain and increase sales while lowering costs, there is a growing trend towards the scaling back of security features in SIM card packaging, which makes sensitive information visible and easily recorded prior to any sale.
This in turn enables nefarious distributors to access the SIM cards, and in the most egregious cases also pre-registering the SIM cards with the details of others rather than the actual buyers.
This practice defeats the objective of RICA to make SIM cards traceable with severely negative implications for law enforcement as well as the broader economy.
South African communities continue to be plagued by high levels of crime.
RICA should have been a tool that enables the police to trace communications in the course of investigations to support evidence gathering in criminal cases and limit the instances of third parties using a customer’s details or identity as their own.
The sale of unregistered or incorrectly registered SIM cards renders this vital tool largely useless.
Worse still, in cases where the SIM cards used in crimes can easily be repackaged and resold, non-compliance with RICA can lead to the implication of innocent people in crimes under investigation.
A further concern is that the non-compliance of RICA can not only thwart investigations, but also actively facilitate crime.
This is the case when inadequately secure SIM card packaging enables the cloning of SIM cards, leading to the defrauding of unsuspecting users.
RICA also interacts with other pieces of legislation that are related not only to law enforcement in South Africa, but also beyond our borders. RICA, for example, affects the enforcement of the Financial Intelligence Centre Act (FICA) insofar as mobile network operators are recognised as non-bank money service providers.
Many consumers will relate to the many ways we all use our cell phones these days to receive and transfer money. RICA therefore has a vital role to play in helping to counter money-laundering, fraud, and terrorism financing.
The failure to adequately do so is part of the reason why South Africa was greylisted by the Financial Action Task Force in February 2023.
The failure to address these critical shortcomings in RICA is therefore no trivial matter when these far-reaching implications are considered. What is even more frustrating is that the amendments needed to address compliance are relatively simple.
By simply providing better, specific guidelines on the requirements for SIM card packaging, government could help to take poorly packaged and improperly secured SIM cards off the market. This must include specific directives on the information which must be covered – such as the MSISDN and ICCID numbers – and the minimum standard for packaging, such as tamperproof and tamper-evident packaging.
Critically, although there are some players, including distributors and resellers, benefitting from the deficiencies in RICA, there is a growing consensus, even among mobile network operators, that more action needs to be taken to address the practices that increase SIM card churn and make South Africans less safe. There is therefore an opportunity to engage with industry players to create a suitable framework that protects South Africans without negatively affecting our telecommunications sector.
It is highly unlikely that the President will return the current Bill to Parliament given the tight deadline to comply with the Constitutional Court.
What is important is that the signing of the current Bill doesn’t lead us to consider the RICA issue as settled.
While the current Parliamentary term will be short given the upcoming election, the amendment of RICA is sufficiently important to national interest to merit prioritisation in this term. After all, every day that we fail to fix RICA is a day that South Africans remain vulnerable to crime.
This is a state of affairs we can all agree is unacceptable.
Siphelele Khanyile is the Managing Executive at Securi-Tech SA, a SIM print and fulfilment company.
BUSINESS REPORT