Spy Nation: Journalists challenge government snooping

2017-04-20 20:19
Smartphone security. (Duncan Alfreds, News24)

Smartphone security. (Duncan Alfreds, News24)

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Johannesburg - The Amabhungane Centre for Investigative Journalism is challenging the government on the law around spying on South Africans.

In an application that was filed in the North Gauteng High Court in Pretoria on Thursday, Amabhungane is making a case that RICA (the Regulation of Interception of Communication and Provision of Communication Related Information Act) is currently unconstitutional.

Amabhungane and its managing partner Sam Sole filed the papers against the Minister of Justice and Correctional Services, the Minister of State Security, the Minister of Communications, the Minister of Defence and Military Veterans, the Minister of Police, the office of the Inspector General of Intelligence, the office for interception centres, the National Communications Centre, the joint standing committee on intelligence and the State Security Agency.

Among the reasons cited for RICA's unconstitutionality is that it does not notify the subject that their communications are being intercepted.

This means millions of South Africans are completely unaware that their calls, meetings, emails and messages are being listened to, recorded and stored for an indefinite period of time.

Freedom of expression

Amabhungane also said that state officials do not follow procedure when examining, copying, sharing, saving, storing or destroying the intercepted information, that the appointed RICA judge cannot be viewed as independent because there is no appointment mechanism for the designated judge other than his or her appointment by a minister, and that RICA fails to regulate all bulk surveillance and foreign signals interception undertaken by state officials.

The papers also indicate that RICA fails to protect subjects of interception like journalists and lawyers who have rights to confidentiality of communications in order to protect sources, clients and to uphold freedom of expression.

At present, if an applicant like the police's crime intelligence division or state security applies to the judge to intercept communications, the designated judge can grant a court order and without notifying the subject.

They can then listen to and record private conversations and meetings as well as read and retain emails and text messages.

Sole, a multi-award winning journalist indicated that during 2008 he suspected that his communication was being intercepted while he was working on a story on the Arms Deal.

Other journalists working at the Mail & Guardian at the time also suspected the same thing. Then editor Nic Dawes complained to the Inspector General. This would not only affect journalists' sources but also having a chilling effect on Freedom of Expression, Sole said.

The Inspector General wrote back and said that after an investigation they found there was no wrongdoing.

Interceptions

In 2015, it emerged publicly that Sole's communication had been intercepted in 2008 when Michael Hulley, the Attorney of President Jacob Zuma, attached extracts from intercepted conversations between Billy Downer and Sole.

Downer was a senior advocate leading the National Prosecuting Authority team investigating charges against Zuma.

Sole said there could be no lawful basis under RICA for his conversations to be intercepted in this way.

There is no way of knowing for sure your communication has been intercepted and the data could be stored indefinitely, Sole said.

Applications for interceptions have shown that at times false information is given to the designated judge to get approval for the intercepts, said Sole.

He said one example was when crime Intelligence intercepted two Sunday Times journalists in 2010, Mzilikazi wa Afrika and Stephan Hofstatter, by giving the judge fictional names and saying the information was needed to investigate a criminal syndicate.

There appears to be no oversight of the whole process, Sole said.

The affidavit indicates that scarily bulk communication surveillance is taking place.

This means there is ongoing monitoring, recording and storage of the communications of large sections of the population. The government's national intelligence signals facility is capable of doing this.

Amabhungane shows in the papers that close to 100% of interception applications are granted by the RICA judge.

The 2009/10 JSCI Report showed that over a four-year period since the Office for Interception Centres was established, three million interceptions were done. This indicates that thousands of interceptions of South Africans were done without any type of court order.

Read more on:    media freedom  |  online privacy  |  media

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