Tag: RICA

Section 3 | Unlawful interception of data

  1. Any person who unlawfully and intentionally intercepts data, including electromagnetic emissions from a computer system carrying such data, within or which is transmitted to or from a computer system, is guilty of an offence.
  2. Any person who unlawfully and intentionally possesses data, with the knowledge that such data was intercepted unlawfully as contemplated in subsection (1), is guilty of an offence.
  3. Any person who is found in possession of data, in regard to which there is a reasonable suspicion that such data was intercepted unlawfully as contemplated in subsection (1) and who is unable to give a satisfactory exculpatory account of such possession, is guilty of an offence.
  4. For purposes of this section ‘‘interception of data’’ means the acquisition, viewing, capturing or copying of data of a non-public nature through the use of a hardware or software tool contemplated in section 4(2) or any other means, so as to make some or all of the data available to a person, other than the lawful owner or holder of the data, the sender or the recipient or the intended recipient of that data and includes the—
    1. examination or inspection of the contents of the data; and
    2. diversion of the data or any part thereof from its intended destination to any other destination.

Section 40 | Interception of indirect communication, obtaining of real-time communication related information and archived communication-related information

  1. The interception of an indirect communication as defined in section 1 of the
    Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, must take place in terms of a direction issued in terms of section 16(4) or 18(3) of that Act and must, subject to subsection (4), be dealt with
    further in the manner provided for in that Act.
  2. The obtaining of real-time communication-related information as defined in section 1 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, on an ongoing basis, as it becomes available, must take place in terms of a direction issued in terms of section 17(3) or 18(3) of that Act, and must, subject to subsection (4), be dealt with further in the manner provided for in that Act.
  3. An electronic communications service provider who is—
    1. in terms of section 30(1)(b) of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, required to provide an electronic communications service which has the capability to store communication-related information; and
    2. not required to store communication-related information in terms of a directive issued in terms of section 30(2) of that Act,
      must, in addition to any other obligation imposed by any law, comply with—
      1. a real-time communication-related direction contemplated in subsection (2), in terms of which the electronic communications service provider is directed to provide real-time communication-related information in respect of a customer, on an ongoing basis, as it becomes available;
      2. an expedited preservation of data direction contemplated in section 41, in terms of which the electronic communications service provider is directed to preserve real-time communication-related information in respect of a customer;
      3. a preservation of evidence direction contemplated in section 42, in terms of which the electronic communications service provider is directed to preserve real-time communication-related information in respect of a customer;
      4. a disclosure of data direction contemplated in section 44, in terms of which the electronic communications service provider is directed to provide real-time communication-related information in respect of a customer that was preserved or otherwise stored by the electronic communications service provider; or
      5. any order of the designated judge in terms of section 48(6), in terms of which the electronic communications service provider is ordered to—
        1. obtain and preserve any real-time communication-related information; or
        2. obtain and furnish traffic data.
          [Commencement date: To be proclaimed]
  4. Any indirect communication which is to be intercepted or any real-time communication-related information or traffic data which is to be obtained, at the request of an authority, court or tribunal exercising jurisdiction in a foreign State must further be dealt with in the manner provided for in an order referred to in section 48(6), which is issued by the designated judge.

[Commencement date: To be proclaimed]