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By Dr Pieter Streicher, MD of BulkSMS.com. Uploaded on: 01 August 2010.
The high-profile Glenn Agliotti court case taking place in South Africa has once again highlighted the role cell phones and SMS play in the law. Unsurprisingly, because cell phones are such an essential part of our everyday lives, and track just about all of our movements and communications.
In the Agliotti case, Clinton Nassif’s cell phone records were subpoenaed by
the court from Vodacom and the times of calls and messages were used to show
that the former security consultant had lied in previous testimony about his
communication with Agliotti. Later, in the same trial, MTN was wrapped over the
knuckles for not waiting to receive a Section 205 subpoena before releasing
Agliotti’s cell phone records.
Pieter Streicher, managing director of BulkSMS.com, takes a look at SMSes role
in preventing crime, enforcing the law and its legal standing.
From a crime prevention point of view, SMS is immensely powerful thanks to its
ability to allow anonymous tip-offs. The Primedia Crime Line service, which was
launched in June 2007 and offers an SMS tip-off line, has resulted in 941
arrests, and the recovery of more than R35.7 millions worth of stolen property,
drugs and counterfeit goods.
SMS also has the capacity to quickly and easily reach a large number of people
on the move and is used effectively by the police force to co-ordinate and
receive information from mobile volunteers, and also by neighbourhood watch
When it comes to law enforcement, SMSes are considered to be written documents
according to the Electronic Communications and Transactions Act (ECT) and are
admissible as evidence in both a criminal and civil court case. Just like an
ordinary document would be assessed by the court to determine its integrity and
evidential weight for instance an original copy of a document with signatures
would count more than a poor photocopy SMSes are assessed based on their
electronic details including when they were created, sent, modified or
As with any other evidence, and as seen in the Agliotti trial, a subpoena is
needed to access an individuals cell phone records. The regulation of
Interception of Communications and Provision of Communication-related
Information Act (more popularly known as RICA) has been put in to place
specifically to make it easier to connect a cell phone account with a specific
From a practical point of view, SMS can also be very helpful in making the
courts run smoothly. Simply by texting a witness the details of their court
appearance and any delays can make the courts run more efficiently. Likewise
lawyers can use SMS to keep their clients up to date with lengthy legal
As mentioned above, SMSes are legally equivalent to written documents and so
written contracts may be legally concluded via an SMS. Saved SMSes are also
adequate proof that a contract has been entered into. SMSes can therefore be
immensely useful in confirming and keeping a record of verbal agreements.
Although spoofing - where a message appears to come from someone it doesn’t -
is possible, by comparing the network logs with the billing logs, courts can
establish whether or not a message was sent from a specific cell phone account.
In light of the fact that SMSes can serve as written contracts, companies need
to consider how they archive the SMSes their employees send. King III
specifically requires company directors to manage foreseeable risks arising
from the use of information and communications technologies. In addition, other
legislation specifies that certain records be archived for a minimum amount of
time. Companies should consider using a desktop SMS application that backs-up
sent and received SMSes rather than having their employees use their handsets,
in order to comply with the law.
But, company cell phones fall into the same category as any other company
electronic equipment. As long as the employer can show they have informed the
employee about the company policy with regards to monitoring electronic
communications, and that the employee has accepted, the employer may access
The cell phone’s inherent features make it a useful tool in tracking
communications allowing it to aid in law enforcement and crime prevention. An
SMS may only be 160 characters long, but legally it has the same clout as far
lengthier communications and should be handled accordingly.
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