New case to decide on government’s right to ‘spy’ on South Africans through their smartphones

 ·6 Jun 2019

A new Pretoria High Court case is set to decide on South Africa’s surveillance laws and the Regulation of Interception of Communications Act (RICA).

The case – which has been brought by the amaBhungane Centre for Investigative Journalism – is set to consider whether parts of the RICA are unconstitutional, as they infringe on the right to privacy and freedom of expression.

This comes after it emerged that amaBhungane journalist Sam Sole’s communications were intercepted while he was reporting on the corruption investigation against former president, Jacob Zuma.

“One strength of the Rica law is that it requires a judge to authorise the communication interception directions (or warrants),” said head of the Department of Journalism at the University of Johannesburg, Jane Duncan, in an analysis for The Conversation.

She added that these directions are limited to serious crimes, for a duration of up to three months at a time, and must be in writing.

“However, this strength in Rica is undermined by the fact that decisions to grant interception directions are taken by only one retired judge who is working alone without having the benefit of an adversarial process,” she said.

“The process is inherently one-sided: the judge has to rely on information provided by the spy agencies, and has been lied to in the past. This problem could be solved by having a panel of judges, and a public advocate interrogating the applications put before the judge.”

She added that the standard for authorisations is weak as agencies merely need to satisfy the judge that there are reasonable grounds to believe a crime has been, is being or will probably be committed.

Needed reform

Sole’s case does not appear to be an isolated incident, with a 2018 report by civil rights group Right2Know (R2K) showing growing evidence of systemic surveillance abuses in the country.

The group said that it would be joining amaBhungane’s RICA challenge in the Pretoria High Court as amici curiae (friends of the court), on the grounds that:

  • People have a right to be notified when their communications have been intercepted so that they can take action when they believe their privacy has been unlawfully breached. Currently, RICA prevents such notification, unlike equivalent laws in other countries, which require a targeted person to be notified that they had been spied on after an appropriate lapse of time;
  • RICA’s requirement that telecommunication users’ metadata – information about when, where, how and with whom they communicate – be stored for years is a massive and systemic violation of the rights of all South Africans who use digital communication. In this case, the state has asserted that it has the power to mandate telecommunications providers to store metadata about South Africans’ phone calls, SMSes, emails, and internet activity for up to five years. This includes the location from which those communications were made and the subject lines of emails which often indicate the content of the message;
  • Mass surveillance is inherently unconstitutional and we demand an end to such practice. RICA does not regulate or make provision for mass surveillance, making this practice unlawful.

“In summary, the gaps in the regulatory framework provided by RICA has allowed the violation of basic rights and it must be re-drafted, the oversight mechanisms strengthened and be brought in line with our Constitution,” R2K said.

“We believe the amaBhungane challenge represents a critical opportunity to protect millions of people’s right to privacy and to help bring an end to surveillance abuses.”

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