Right2Know applies to join amaBhungane challenge on RICA

The Right2Know campaign and Privacy International (PI) have applied to intervene as amicus curiae (friends of the court) in the matter of amaBhungane challenging the government on the law around spying on citizens.

AmaBhungane filed an application in the North Gauteng High Court in Pretoria last year, making a case that RICA (the Regulation of Interception of Communication and Provision of Communication Related Information Act) is currently unconstitutional. 

In his affidavit, Right2Know organiser Murray Hunter said the organisation and PI support the applicant's arguments. 

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.

"To be clear, R2K and Pl's position is that unregulated, untargeted surveillance of information, merely because it happens to cross South Africa's borders is unconstitutional," Hunter said.

"That is not to say that the intelligence services are prohibited from intercepting any foreign communication. But they can only do so in a way that is targeted and carefully regulated. The current regime exhibits neither of those features."

'Unregulated violations'

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

Hunter said the applicants argue that various provisions of RICA are unconstitutional because they do not provide a default rule that the subjects of interception orders should be notified of the decision. 

"Instead, RICA unconstitutionally creates an absolute rule of secrecy that subjects will never be notified, even at a point where notification would cause no harm to the investigation. 

"The complete ban of subject notification can never be justified. The absence of notification violates [section] 38 of the Constitution," he argues.

This means that 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.

Hunter also argues in his affidavit that the violation is "exacerbated by the fact that it is virtually unregulated".

"The government does not seek authorisation for these immense powers under RICA or any other statute. They appear to admit that RICA prohibits the interception, recording and copying of this information without judicial warrant."

News24 previously reported that amaBhungane had 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 such as journalists and lawyers who have rights to confidentiality of communications in order to protect sources, clients and to uphold freedom of expression.

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