Expedited preservation of data direction

Expedited preservation of data direction

41.

(1) A specifically designated police official may—

(a) if they believe on reasonable grounds that any person, an electronic communications service provider referred to in section 40(3), or a financial institution is—

(i) in possession of;

(ii) to receive; or

(iii) in control of, data as contemplated in paragraph (a) of the definition of ‘‘article’’; and

(b) with due regard to the rights, responsibilities and legitimate interests of other persons in proportion to the severity of the offence in question, issue an expedited preservation of data direction to such a person, electronic communications service provider or financial institution.

(2) Subsection (1) also applies to—

(a) archived communication-related information which an electronic communications service provider is no longer required to store due to the fact that the period contemplated in section 30(2)(a)(iii) of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, is due to come to an end; or

(b) any other data which—

(i) must be stored for a certain period in terms of any other law and that period is due to come to an end; or

(ii) is stored by an electronic communications service provider which is not real-time communication-related information or archived communication-related information as contemplated in section 1, read with section 30(2) and any directive issued in terms of that section, of the Regulation of Interception of Communications and Provision of Communicationrelated Information Act, 2002.

(3) An expedited preservation of data direction must be in the prescribed form and must be served on the person, electronic communications service provider or financial institution affected thereby, in the prescribed manner by a police official.

(4) An expedited preservation of data direction must direct the person, electronic communications service provider or financial institution affected thereby, from the time
of service of the direction, and for a period of 21 days—

(a) to preserve the current status of;

(b) not to deal in any manner with; or

(c) to deal in a certain manner with, the data referred to in the direction in order to preserve the availability and integrity of the data.

(5) No data may be disclosed to a police official on the strength of an expedited preservation of data direction, unless it is authorised in terms of section 44.

(6) The 21 day period referred to in subsection (4), may only be extended by way of a preservation of evidence direction contemplated in section 42, once, for an additional period which may not exceed 90 days.

(7) A person, electronic communications service provider or financial institution to whom an expedited preservation of data direction, referred to in subsection (1), is addressed may, in writing in the prescribed form and manner, apply to a magistrate in whose area of jurisdiction the person, electronic communications service provider or financial institution is situated, for an amendment or the cancellation of the direction concerned on the ground that they cannot timeously or in a reasonable fashion, comply with the direction.

(8) The magistrate to whom an application is made in terms of subsection (7) must, as soon as possible after receipt thereof—

(a) consider the application and may for this purpose, order oral or written evidence to be adduced regarding any fact alleged in the application;

(b) give a decision in respect of the application; and

(c) inform the applicant and specifically designated police official referred to in subsection (1) of the outcome of the application.

(9) A person, electronic communications service provider or financial institution referred to in subsection (1) who—

(a) fails to comply with an expedited preservation of data direction or contravenes the provisions of subsection (5); or

(b) makes a false statement in an application referred to in subsection (7), is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding two years or to both a fine and such imprisonment.

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