Until the accountability gap gets plugged, where breaking the rules comes with consequences, we will always have to fear surveillance abuses, writes Murray Hunter.
This week, the Pretoria High Court will hear arguments in a landmark constitutional challenge to South Africa's surveillance law known as RICA.
The amaBhungane Centre for Investigative Journalism filed this challenge after learning that state spies had been recording journalist Sam Sole's phone communication for (at least) six months in 2008 during the 'Spy Tapes' era.
They aimed, presumably, to monitor his conversations with confidential sources and whistleblowers, but also had access to every mundane and personal interaction along the way.
The court hearing is the first public airing on surveillance abuses since President Cyril Ramaphosa released his damning review of the State Security Agency (SSA) three months ago.
While RICA has suffered years of criticism for enabling spying abuses (particularly against journalists), the unlikely chain of evidence in this case has at last provided scaffolding for a court review.
In essence, amaBhungane (with the Right2Know and Privacy International as friends of the court) is asking the court to strike down key weaknesses in RICA which enabled this abuse, on the basis that any infringements of the constitutional rights of privacy and freedom of expression must be subject to greater transparency and oversight.
On transparency, amaBhungane has argued that people targeted for surveillance should receive notification after the fact – once any legitimately sensitive investigation is over, obviously.
A system of delayed notification would limit the scope for abuse and bring South Africa's surveillance laws in line with international equivalents, even in notoriously spy-happy jurisdictions like the United States.
As it stands, RICA's secrecy clauses prevent anyone from learning that a warrant was issued to intercept their private communication, which has allowed corrupt operatives to spy wantonly on their critics and perceived enemies (including their own colleagues) without detection or consequences.
On oversight, while RICA provides that most forms of surveillance must be authorised by a judge, amaBhungane has drawn the court's attention to key shortcomings in the independence of the RICA judge's office, essentially proposing a more rigorous and less one-sided process to authorising any infringement of a person's right to private communication.
AmaBhungane's challenge also seeks to regulate vast bulk of surveillance which never crosses the RICA judge's desk in Pretoria.
This is done through the National Communication Centre, where large quantities of the public's meta data is reportedly collected and analysed with no legal oversight.
AmaBhungane's application asks the court to rule either that this type of surveillance is unconstitutional and should be stopped, or in the alternative, brought under legal regulation and oversight.
Should the amaBhungane challenge succeed, it will be a major rollback of surveillance powers that have infringed the privacy of government critics and watchdogs, and potentially millions of ordinary people as well.
No silver bullet against surveillance abuse
But the case, which is necessarily limited to the confirmed facts and circumstances of the spying on Sole, is no silver bullet against surveillance abuses.
For example, while the amaBhungane case does speak to South Africa's especially weak legal safeguards for metadata (records of who you communicate with, and when and where, rather than the actual contents) it has limited scope to address these.
This is because, while the state intercepted Sole's communication in terms of RICA, the majority of 'authorised' surveillance never crosses the RICA judge's desk in Pretoria.
Instead, it's authorised through a parallel law, Section 205 of the Criminal Procedures Act, which allows police to seize a person's historical communication records with the permission of a mere magistrate, and for any low-level offence.
If the RICA judge represents the high-water mark of surveillance oversight (for all its failings), Section 205 of the CPA is the bottom of the donga, requiring the cursory approval of the lowest court officers to secure a catalogue of your every digital interaction over months or even years.
With cell phone network operators receiving more than a thousand such warrants a week, the scope for abuse is huge. In one known case, corrupt police appear to have used the weak checks in Section 205 to illegally spy on a journalist, and in another, senior legal figures, state regulators and senior police officials.
Plugging the gaps
But in building greater protections for privacy in South Africa, the gaps in the law are probably the easiest to plug. The harder task will be to plug the gaps in our politics.
The first gap is from the missing accountability. A law is only as good as the officials and institutions who enforce it, and those who have been charged with enforcing accountability in our intelligence and law-enforcement agencies have failed us, repeatedly.
As Ramaphosa's SSA inquiry shows, there is rarely a political or personal cost for spies who abuse their power, nor for the politicians they serve.
Until the accountability gap gets plugged, where breaking the rules comes with consequences, we will always have to fear surveillance abuses.
The second, bigger gap, is where ordinary South Africans need to re-imagine privacy as part of the struggle for equality, dignity and freedom.
We live in a violent, fearful and unequal society, where ordinary people are desperate for protection from crime. We are told that the only thing that can make us safe is for us to give up our privacy.
Perhaps this argument is made in good faith. But it ignores the wholesale lack of evidence that surveillance measures have led to more effective policing.
We do see a different pattern emerging: growing evidence that surveillance powers have been instrumental in state capture – perhaps the biggest legitimate national security threat of the recent era.
The hijacking and perversion of law-enforcement agencies has almost certainly led to less effective policing, and fewer prosecutions of actual crime. Unchecked security powers tend to make societies less safe, and less just.
The proponents of a surveillance state will always guard their powers jealously, usually while seeking to expand them. This week, a high court bench will have to weigh the legal arguments. But the rest of us should be listening as well – because the privacy of millions of people is at stake. If we decide it's worth protecting, the work can begin.
- Hunter is a researcher and writer on surveillance.
- Read AmaBhungane's head of argument here
- Read Minister of State Security and intelligence agencies heads of argument here Read Minister of Justice and other ministers heads of argument here
- Read Right2Know and Privacy International amici curiae heads of argument here
AmaBhungane undertakes this litigation as part of its advocacy mandate, which is to secure the information rights that investigative journalists need to do their work, and in the wider public interest.
The amaBhungane Centre for Investigative Journalism, an independent non-profit, provided this story. Like it? Be an amaB Supporter to help us do more. Sign up for our newsletter and WhatsApp alerts to get more.