International Trends in Mobile Law


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Broad overview of international trends in mobile law, definition of mobile law, need for mobile law and issues of international concern

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International Trends in Mobile Law

  1. 1. Trends inMobile Law SA’s 6th Annual Cyber Law Conference Bytes Conference Center, Midrand, South Africa 1 November 2011 Adv Jacqueline Fick PwC : Forensic Technology Solutions
  2. 2. Agenda• Introduction to Mobile Law ― Definition of Mobile Law ― Definitions from RICA• Need for Mobile Law• International trends in Mobile Law: Emerging Issues ― Pornography on mobile phones ― Internet/mobile gambling ― Mobile phone spam ― Monitoring of content on mobile phones ― Vishing ― Other issues of international concern• Closing remarksInternational Trends in Mobile Law 1 November 2011PwC 2
  3. 3. Introduction to Mobile LawInternational Trends in Mobile Law 1 November 2011PwC 3
  4. 4. Introduction to Mobile LawDefinition of Mobile Law "Mobile Law refers to the emerging legal discipline and jurisprudence that impacts, pertains to, is associated with or has a bearing upon complicated legal issues concerning mobiles, communication devices of any kind whatsoever, mobile phones, mobile networks, mobile platforms, mobile computers and laptops, as also all data, and information, in any form, digital or otherwise, which is hosted, generated , sent, received or transmitted, in any manner whatsoever, using the said mobile devices and platforms. The emerging area of mobile law encompasses, within its ambit, complex legal issues and challenges that would impact within the mobile ecosystem, any device, computer, computer system, computer network, computer resource, data or information in the electronic form." (Pavan Duggal, Trends in Mobile Law 1 November 2011PwC 4
  5. 5. Introduction to Mobile LawConcept of Mobile Law is a newly emerging concept and promises tobecome a much bigger discipline of law as the world progresses towardsincreasing penetration, adoption and usage of mobile devices. Itincorporates all legal issues pertaining to the use of :• Mobiles, Mobile handsets and Mobile platforms• Communication devices• Personal digital assistants• Computers, computer systems and computer networks that assist in the communication, transmission, receipt, sending, preserving, retention and other related activities pertaining to data and information in the electronic form targeted at mobile devices, as well as mobiles and mobile handsets. (Pavan Duggal, Trends in Mobile Law 1 November 2011PwC 5
  6. 6. Introduction to Mobile LawDefinitions from RICASection 1 of Regulation of Interception of Communications andProvision of Communication-related Information Act, 70 of 2002(RICA) :• “Cellular phone” – means any fixed or mobile cellular apparatus or terminal which is capable of connection to a cellular telecommunication system and which is used by a customer to transmit or receive indirect communications over such telecommunication system• “Communication” – includes both a direct communication and an indirect communication. (Note that if a person overhears an utterance and is in the immediate presence of a person who is participating in an indirect communication, it is classified as direct communication.)International Trends in Mobile Law 1 November 2011PwC 6
  7. 7. Introduction to Mobile LawDefinitions from RICA (cont.)• “Communication-related information” – means any information relating to an indirect communication which is available in the records of a telecommunication service provider, and includes switching, dialling or signalling information that identifies the origin, destination, termination, duration and equipment used in respect of each indirect communication generated or received by a customer or user of any equipment, facility or service provided by such a telecommunication service provider and, where applicable, the location of the user within the telecommunication system.• “Contents” – when used with respect to any communication, includes any information concerning the substance, purport or meaning of that communication.International Trends in Mobile Law 1 November 2011PwC 7
  8. 8. Introduction to Mobile LawDefinitions from RICA (cont.)• “Electronic communication service provider” – means any – (a) Person who provides an electronic communication service under and in accordance with a electronic communication service licence.... And includes any person who provides – (i) a local access communication service, public pay-telephone service, value-added network service or private electronic communication network as defined in the Electronic Communications Act; or (ii)any other electronic communication service licensed or deemed to be licensed or exempted from being licensed as such....; and (b) Internet service provider.International Trends in Mobile Law 1 November 2011PwC 8
  9. 9. Need for Mobile LawInternational Trends in Mobile Law 1 November 2011PwC 9
  10. 10. Need for Mobile LawAlthough people agree that mobiles are a category unto themselves andthat although the mobiles qualify as computers and computer systems,there is a need for distinct legislation to deal with mobiles, mobiledevices, communication devices and also mobile platforms data andinformation connected therewith.Various legal issues will continue to arise, relating to:• Production, manufacture, sale, marketing, distribution and related activities pertaining to mobile handsets, mobile devices and mobile platforms• Issues pertaining to data and information in electronic format that resides on mobile devices or is transmitted, sent or received, preserved or retained in the devices and/or platforms. ( Trends in Mobile Law 1 November 2011PwC 10
  11. 11. International Trends in Mobile Law: EmergingIssuesInternational Trends in Mobile Law 1 November 2011PwC 11
  12. 12. International Trends in Mobile LawEmerging IssuesUse of mobile phones and devices whilst drivingMove in several countries to regulate the use of mobile phones whilstoperating a motor vehicle (including in some countries motor cyclesetc):• USA: Different states have implemented their own regulations banning the use of mobile telephones and portable electronic devices whilst driving a motor vehicle. Using defined as holding telephone to or in immediate proximity of the user‟s ear. In some states provisions do not apply when a telephone is used for the sole purpose of communicating regarding an emergency situation or when certain categories of officials perform their official duties.International Trends in Mobile Law 1 November 2011PwC 12
  13. 13. International Trends in Mobile LawEmerging IssuesUse of mobile phones and devices whilst driving (cont.)• UK: Ban on mobile phone use whilst driving, with fines and demerit system if found guilty of using a phone to make calls or send text messages. Also includes persons supervising a learner driver whilst the learner driver is driving a vehicle.• South Africa: Road rules governing cell phones are promulgated by the Road Traffic Act. Some provinces are even considering authorising traffic officers to confiscate mobile phones. Can be contributing/aggravating factor in reckless and negligent driving.International Trends in Mobile Law 1 November 2011PwC 13
  14. 14. International Trends in Mobile LawEmerging IssuesUse of mobile phones and risk to health• Debate on whether mobile phone radiation emissions can be dangerous to health.• San Francisco, USA: Mobile phone law that would advise consumers to take precautions to avoid mobile phone radiation, which has never been conclusively proven to cause cancer. Recent court ruling that warnings “true and misleading”.• The use of mobile phones within for example a medical facility/ hospital can interfere with medical equipment.International Trends in Mobile Law 1 November 2011PwC 14
  15. 15. International Trends in Mobile LawEmerging IssuesPornography on mobile phones• Need for strict rules on accessing data relating to pornography or child images via mobile phones, downloading or transferring via Bluetooth.• Switzerland: Ban prohibiting the sale of pornographic films and images through mobile phones.• China: Any sexually explicit message or image transmitted through mobile devices prohibited.• USA: Video Voyeurism Prevention Act of 2004 prohibits people from taking nude pictures of anyone else with their mobile phone cameras, unless with consent of person who legally can give consent.• South Africa: Regulations in terms of the Films and Publications Act 65 of 1996.International Trends in Mobile Law 1 November 2011PwC 15
  16. 16. International Trends in Mobile LawEmerging IssuesInternet/mobile gambling and gaming• Several countries have banned mobile phone gambling and gaming, especially where it is illegal in that country.• South Africa: Online gambling is still illegal (awaiting appellate court decision). The only legally recognised activity via the internet in RSA is online betting within the racing and betting environment. RSA residents remain precluded from partaking in lotteries organised abroad or participating in any online gambling activities as such participation contravenes the Lotteries Act No 57 of 1997 and the National Gambling Act No 7 of 2004 respectively.International Trends in Mobile Law 1 November 2011PwC 16
  17. 17. International Trends in Mobile LawEmerging IssuesMobile phone spam• Form of spamming directed at the text messaging service of a mobile phone. Described as mobile spamming, SMS spam, text spam or m- spam (• SMS spam is illegal under common law in many jurisdictions. Jurisdictions with specific SMS spam regulation and fines include Australia, the EU and the USA. In the USA, violators face substantial costs, e.g. in a 2008 settlement, the violator agreed to pay $150 to each spam recipient. USA Federal Trade Commission (FTC) expanded phone spam regulations to also cover voice spam – mostly in the form of pre-recorded telemarketing calls – commonly known as robocalls.• South Africa: Consumers protected by the Consumer Protection Act 68 of 2008 and the Electronic Communications and Transactions Act 25 of 2002.International Trends in Mobile Law 1 November 2011PwC 17
  18. 18. International Trends in Mobile LawEmerging IssuesMonitoring of content on mobile phones• “Court: No warrant needed to search cell phone by Bob Sullivan The next time you’re in California, you might not want to bring your cell phone with you. The California Supreme Court ruled on Monday that police can search the cell phone of a person who’s been arrested – including text messages – without obtaining a warrant, and use that data as evidence. ” no-warrant-needed-to-search-cell-phone)• Also reports that Michigan police were using a device to download cell phone data during routine traffic stops.International Trends in Mobile Law 1 November 2011PwC 18
  19. 19. International Trends in Mobile LawEmerging IssuesMonitoring of content on mobile phones (cont.)• UK: Metropolitan Police Service (MPS) came under fire after revelations that it had been using technology to monitor mobile phone communications over a 10 km radius, in apparent breach of the Regulation of Investigatory Powers Act. Paid a company since 2008 for technology that allowed it to create a „spoof‟ mobile phone mast through which communications were intercepted.• MPS informed public that they were unable to discuss the specific technologies used, but did claim that all its work was legal and compliant.International Trends in Mobile Law 1 November 2011PwC 19
  20. 20. International Trends in Mobile LawEmerging IssuesMonitoring of content on mobile phones (cont.)• Telephone monitoring, tapping/interception is strictly controlled and legislated in many countries to safeguard privacy.• Position regarding the monitoring and interception of data and communications on mobile phones regulated in South Africa by RICA: • No interception of communication without interception direction, if party to communication or with consent of party to communication (sections 2 – 5) • Interception of communication to prevent serious bodily harm, or for purposes of determining location in case of emergency (sections 7 and 8)International Trends in Mobile Law 1 November 2011PwC 20
  21. 21. International Trends in Mobile LawEmerging IssuesMonitoring of content on mobile phones (cont.) • Listed equipment (S 44): Minister must, by notice in the Gazette, declare any electronic, electro-magnetic, acoustic, mechanical or other instrument, device or equipment, the design of which renders it primarily useful for purposes of the interception of communications, under the conditions or circumstances specified in the notice, to be listed equipment. • Prohibition on the manufacture, possession and advertising of listed equipment with certain exemptions (s 45 and 46). Minister may, upon application and in consultation with the relevant Ministers exempt any .... Law enforcement agency from the prohibited acts of possessing and purchasing referred to in section 45(1).International Trends in Mobile Law 1 November 2011PwC 21
  22. 22. International Trends in Mobile LawEmerging IssuesVishing• Vishing is the criminal practice of using social engineering over telephone systems, most often using features facilitated by Voice over IP (VoIP) to gain access to private personal and financial information from the public for the purpose of financial reward.• The term is a combination of “voice” and “phishing”.• Vishing is typically used to steal credit card numbers or other information used in identity theft schemes from individuals.International Trends in Mobile Law 1 November 2011PwC 22
  23. 23. International Trends in Mobile LawEmerging IssuesVishing (cont.)• Very hard to monitor or trace.• Consumers are advised to be highly suspicious when receiving messages directing them to call and provide credit card or bank numbers.• There is technology available that can monitor all public switched telephone network (PSTN)-based traffic and can identify vishing attempts as a result of patterns and anomalies in call activity, e.g. Multiple calls from a limited set of Skype numbers to call centers . ( Trends in Mobile Law 1 November 2011PwC 23
  24. 24. International Trends in Mobile LawEmerging IssuesOther issues of international concern• Smartphone applications: how application developers are collecting user information, without proper disclosures.• “Re-birthing” of mobile phones• Measurement and control of limited data specified in specific packages.• Blocking the downloading/installation of applications on mobile devices.• P2P and VoIP bypass calls over mobile networks.International Trends in Mobile Law 1 November 2011PwC 24
  25. 25. Closing RemarksInternational Trends in Mobile Law 1 November 2011PwC 25
  26. 26. Closing remarks• Mobile law is a fast developing specialist field, closely related to the legal framework governing computers.• Comparative study reveals that emerging issues pertaining to the field of mobile law similar across the globe.• Need for special legislation in some cases to govern mobile law.• Need for awareness of issues pertaining to field of mobile law.International Trends in Mobile Law 1 November 2011PwC 26
  27. 27. A successful lawsuit is the one worn by a policeman. Robert Frost (1875-1963) American PoetThis publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon theinformation contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to theaccuracy or completeness of the information contained in this publication, and, to the extent permitted by law, PwC, its members, employees and agents donot accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on theinformation contained in this publication or for any decision based on it.© 2011 PricewaterhouseCoopers (“PwC”), the South African firm. All rights reserved. In this document, “PwC” refers to PricewaterhouseCoopers in SouthAfrica, which is a member firm of PricewaterhouseCoopers International Limited (PwCIL), each member firm of which is a separate legal entity and does notact as an agent of PwCIL.