How wide spread is state surveillance in SA? Right2Know is trying to find out

Is the government watching you?

The answer to this question might be tricky to find as according to Right2Know (R2K) there is an ever growing fear that the state is flouting the law and undermining constitutional rights in favour of surveillance. R2k wants to know how real this fear is, and it’s trying to force telcos to tell us by issuing Promotion of Access to Information Act (PAIA) requests to the big four simultaneously.

To explain why this is, we first need to understand how authorities go about intercepting communications in South Africa.

In countries such as Germany, South Korea, and even the USA when a government intercepts communications they must inform you that this is being done. In instances where tipping off a suspect would jeopardise an investigation this notification can be delayed.

In South Africa however authorities never need to tell you anything. Neither when they start surveilling you, nor when it ends. Journalist Sam Sole illustrated just how terrible this is back in April in a piece published by the Mail & Guardian.

Now, you might mutter to yourself “why should criminals be informed” to wit I would reply, “if you were suspected of a crime would you be okay with authorities secretly monitoring every aspect of your life?”

And that is the problem with the Regulation of Interception of Communications and Provision of Communication-Related Information Act, or as it’s more widely known – RICA.

The problems with RICA and the secret back-door

While many folks know RICA as that annoying bit of legislation that states you have to bring your ID and proof of residence along when registering a SIM card, the legislation also makes provisions for authorities to conduct surveillance.

With that having been said RICA also states that authorities can’t just start surveillance without getting a court order from a specially assigned judge. However, there is only one RICA judge in South Africa and they sit in Pretoria according to Daily Maverick.

This makes submitting a request for surveillance rather tricky, especially if it is time sensitive.

So RICA makes provision for law enforcement to use another law to grant surveillance requests: section 205 of the Criminal Procedure Act.

That section reads as follows:

Judge, regional court magistrate or magistrate may take evidence as to alleged offence
(1) A judge of a High Court, a regional court magistrate or a magistrate may, subject to the provisions of subsection (4) and section 15 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, upon the request of a Director of Public Prosecutions or a public prosecutor authorized thereto in writing by the Director of Public Prosecutions, require the attendance before him or her or any other judge, regional court magistrate or magistrate, for examination by the Director of Public Prosecutions or the public prosecutor authorized thereto in writing by the Director of Public Prosecutions, of any person who is likely to give material or relevant information as to any alleged offence, whether or not it is known by whom the offence was committed: Provided that if such person furnishes that information to the satisfaction of the Director of Public Prosecutions or public prosecutor concerned prior to the date on which he or she is required to appear before a judge, regional court magistrate or magistrate, he or she shall be under no further obligation to appear before a judge, regional court magistrate or magistrate.

Simply put, law enforcement can apply for the right to watch your communications without having to go through RICA. This loophole is problematic because it can be abused.

Which brings us to R2K and a PAIA request it has submitted to South African telcos to bring to light just how widespread surveillance using the Section 205 loophole is.

“These requests are one step towards some desperately needed transparency in the use of state surveillance in South Africa, and the role of the private sector,” R2K spokesperson Murray Hunter tells us.

“There are growing fears, and growing evidence, that state surveillance powers have been used in ways that violate the law and undermine constitutional rights. The Section 205 loophole is one part of that – it effectively means that tens of thousands of surveillance operations are being authorised outside of the RICA oversight system, by magistrates across the country,” explains Hunter.

The best solution would be for government to go back to RICA and see how it can be improved but, says R2K, there’s no guarantee that RICA reform will be good reform.

“It is by no means guaranteed that a reform of RICA will be a progressive reform. There are strong indications that securocrats in the intelligence structures want more aggressive, more invasive measures, not more safeguards and transparency,” Hunter says.

The best bet then is transparency, which is why R2K has filed a PAIA request with Cell C, Vodacom, MTN and Telkom to determine how often Section 205 of the CPA is used to grant surveillance. It’s common for companies to completely ignore these, which is why R2K is trying get the fact they’ve filed them on record – it’s in public’s interest to know that responses are awaited.

Now we need to wait for the telcos to show us how often government tracks us. Once we know that, we can start a debate about the merits of RICA and Section 205.

So we ask you again, are you being watched by the government?

Perhaps it’s time we all found out.


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