The Right2Know Campaign and Privacy International have applied to be admitted as friends of the court in an ongoing legal challenge to South Africa’s surveillance law – RICA – in the High Court in Pretoria.
This follows a 2017 application filed by AmaBhungane in the Gauteng High Court (Pretoria), which argued that the RICA (the Regulation of Interception of Communication and Provision of Communication Related Information Act) is unconstitutional.
In a statement released on Tuesday (7 August) the civil rights group said that its decision comes on the back of mounting evidence that the South African state’s surveillance powers have been abused, and so-called “checks and balances” in RICA have failed to protect citizens’ constitutional right to privacy.
Its core arguments include:
- 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.
- That 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.
- That mass surveillance is inherently unconstitutional.
“The bottom line is that RICA has violated basic rights and is in desperate need of being re-drafted and brought in line with our Constitution,” the 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.”
As part of its April 2017 application, the amaBhungane Centre for Investigative Journalism said that the RICA bill has given government unfettered levels of access to private information.
“The core issue is that legislation governing legal interception, the RICA was conceived when most people thought of monitoring communications as being a rare right granted by a judge to officer Koekemoer or agent Sithole to tape and listen in on the conversations of criminals and terrorists,” said maBhungane journalist Sam Sole.
“This conception was outdated even when the law was passed in 2002 – and now it is light years away from the reality of modern signals intelligence. The law’s safeguards, inadequate then, are dangerously weak now.”
Sole and amaBhungane’s application seeks to remedy RICA’s inconsistencies by firstly addressing where RICA fails to regulate certain activities and secondly to address issues where the legislation does apply, but does so inconsistently.
In addition, Sole set out a number of specific grievances he had with law including:
- The target of the interception order is never informed of the order;
- There is no clear procedure for when state officials are examining, copying, sharing, sorting through, using, destroying and/or storing the data;
- There are no oversight mechanisms for telecom companies holding this data for government;
- And there are no systems in place to protect the identity or confidentiality of those communications being intercepted.