The Right 2 Know (R2K) campaign has released a new privacy report, showing that\u00a0government \u00a0is accessing tens of thousands of people\u2019s sensitive communication information every year, using a loophole in South Africa’s surveillance policies.<\/p>\n
Statistics published by\u00a0MTN, Vodacom, Cell C and Telkom show that law enforcement agencies are spying on the communications of at least 70,000 phone numbers each year.<\/p>\n
However, in an analysis of the statistics, R2K believes the number could be much higher.<\/p>\n
In May 2017, R2K asked MTN, Telkom, Vodacom and Cell C how many warrants they received in terms of section 205 of the Criminal Procedures Act for 2015, 2016 and 2017.<\/p>\n
The statistics submitted by Vodacom, MTN, Cell C and Telkom showed that\u00a0that law enforcement requested call records for\u00a0at least\u00a070,960 phone numbers every year.<\/p>\n
Due to incomplete records (only Vodacom and Telkom could say how many phone numbers were contained in the warrants it received) the actual number is estimated to be much higher.<\/p>\n
Extrapolating from this data, Daily Maverick<\/a><\/strong> journalist Heidi Swart said the estimated total could be as high as 194,820 phone numbers each year.<\/p>\n The loophole<\/strong><\/p>\n R2K’s requests to operators were aimed at understanding how a legal loophole has allowed surveillance operations to take place using the Criminal Procedures Act, rather than the RICA law.<\/strong><\/p>\n RICA is meant to be South Africa’s primary surveillance law, requiring law enforcement and intelligence agencies to get the permission of a special judge, appointed by the president, to intercept a person’s communications.<\/p>\n To apply for this warrant, the agencies need to provide strong, valid reasons as such interceptions significantly threaten people’s right to privacy.<\/p>\n “But policymakers have wrongly assumed that the information about <\/em>the communication (such as the identity of who you have communicated with, when, and your location) is less sensitive than the content of the communication,” said R2K.<\/p>\n “This has led to a ‘loophole’ in our surveillance laws: section 205 of the Criminal Procedures Act allows law enforcement officials to bypass the RICA judge<\/a><\/u><\/strong> to get access to get your phone records \u2013 who you have communicated with, when, and where.”<\/p>\n According to this law, any magistrate can issue a warrant that forces telecoms companies to give over a customer\u2019s call records and metadata. When a person’s communications information is handed over using the Criminal Procedures Act, they are not notified, even if the investigation is dropped or if they are found to be innocent.<\/p>\n “Policy makers are wrong to assume this information is less sensitive or private than the contents of the communication: metadata can reveal as much, if not more, about a person’s contacts, interests and habits than what they say over the phone or in a text message,” said R2K.<\/p>\n
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