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7.3.19 While the issue arises in dealing with illegal or inappropriate content or
with the new types of crime that electronic communication fosters, the
form and procedures for lawful access are important in combating crime
of any nature. Not surprisingly, lawful access provisions are among the
most controversial in the fight against cyber-crime and for policing
authorities operating in a cyber-environment. “Lawful access” or
authorised access refers to how law enforcement agencies will intercept
and search and seize electronic information. This applies, of course, not
only to information about cyber-crime, but also to information about
other criminal activity. Lawful, in the sense of being authorised, access
is an essential tool to criminal investigations (and, with appropriate
safeguards, regulatory investigations) and “wiretapping” has been used
for scores of years. National security concerns have raised the
importance and profile of these issues. In jurisdictions operating with a
strong tradition of the Rule of Law, independent authorisation (often
from a court) is required for information interception. Rapidly changing
technologies, however, create a significant challenge to authorities
wanting to carry out effective investigations.
7.3.20 The implementation of Maitlamo is intended, among other objectives, to
draw investment and business to Botswana. It is important, therefore,
that the Government look to international norms in establishing any new
regime for lawful access. These include independent authorisation of
interception and mechanisms for accountability for activities or
behaviour that intrudes on the privacy of citizens and businesses
operating in Botswana.
7.3.21 The EU Convention on Cybercrime does not require any specific lawful
access procedures since the Convention will be implemented through
domestic European legislation. It does, however, deal with procedural
powers relating to data preservation, production, search and seizure, and
real time collection. There are some fine distinctions of language that
must be considered in developing any Botswana policies that rely on the
Convention; for example, preservation of data means to keep data that
already exists while retention of data means to keep for the future data
that is currently being generated. One can certainly see situations where
either or both powers would be useful or necessary, but lawful access
provisions such as these have implications for network design and costs
to ISPs and others in the system that need to be considered in policy
development. It is also important to remember that communication data
collection (e.g., e-mails) always involves intrusion on at least two
parties, one of whom may be entirely innocent of any suspicion of
wrongdoing. There may also be different levels of information that can
be obtained: for example, the name of a URL versus the data on the
URL itself.