International Trends in Mobile Law

www.pwc.com

International Trends in
Mobile Law

SA’s 6th Annual Cyber Law Conference
Bytes Conference Center, Midrand,
South Africa
1 November 2011

Adv Jacqueline Fick
PwC : Forensic Technology Solutions

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 remarks
International Trends in Mobile Law 1 November 2011
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Introduction to Mobile Law

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Definition 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, http://www.mobilelaw.net)
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Concept of Mobile Law is a newly emerging concept and promises to
become a much bigger discipline of law as the world progresses towards
increasing penetration, adoption and usage of mobile devices. It
incorporates 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, http://www.mobilelaw.net)
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Definitions from RICA

Section 1 of Regulation of Interception of Communications and
Provision 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.)

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Definitions 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.

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Definitions 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.

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Need for Mobile Law

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Need for Mobile Law

Although people agree that mobiles are a category unto themselves and
that although the mobiles qualify as computers and computer systems,
there is a need for distinct legislation to deal with mobiles, mobile
devices, communication devices and also mobile platforms data and
information 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.
(http://www.mobilelaw.net)

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International Trends in Mobile Law: Emerging
Issues

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International Trends in Mobile Law
Emerging Issues
Use of mobile phones and devices whilst driving
Move in several countries to regulate the use of mobile phones whilst
operating a motor vehicle (including in some countries motor cycles
etc):
• 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.

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Emerging Issues
Use 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.

PwC 13

Emerging Issues
Use 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.

PwC 14

Emerging Issues
Pornography 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.
PwC 15

Emerging Issues
Internet/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.

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Emerging Issues
Mobile 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 (www.wikipedia.com).
• 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.
PwC 17

Emerging Issues
Monitoring 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. ”
http://redtape.msnbc.msn.com/_news/2011/01/04/6345501-court-
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.

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Emerging Issues

Monitoring 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.

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Emerging Issues

• 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)

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Emerging Issues

• 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).

PwC 21

Emerging Issues

Vishing
• 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.

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Emerging Issues

Vishing (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 .
(http://www.wikipedia.com)

PwC 23

Emerging Issues

Other 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.

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Closing Remarks

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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.

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A successful lawsuit is the one worn
by a policeman.

Robert Frost (1875-1963)
American Poet

This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the
information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the
accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, PwC, its members, employees and agents do
not 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 the
information 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 South
Africa, which is a member firm of PricewaterhouseCoopers International Limited (PwCIL), each member firm of which is a separate legal entity and does not
act as an agent of PwCIL.

International Trends in Mobile Law

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