South Africa’s Constitutional Court has declared the law which governs the communication surveillance activities of the country’s intelligence community unconstitutional.
The case was based on evidence that the state spied on investigative journalist Sam Sole, of amaBhungane Centre for Investigative Journalism, while he was communicating with a source in the National Prosecuting Authority.
The judgment is a huge advance for privacy and freedom of expression. It means that rogue spies will be less able to manipulate the process to spy on journalists, lawyers, activists and others purely because they are critical of the state. When they ask a judge for permission to conduct surveillance, they will have to be much more careful about justifying the request.
But the judgment still leaves some loopholes in the surveillance law. The spy agencies could use these to continue their abuses. The loopholes include lax controls on the use of archived metadata and intelligence sharing.
The surveillance law forbids anyone from intercepting communications except under the narrow circumstances it sets out. One of these is that a select group of state agencies must apply for an “interception direction” (or warrant) to conduct surveillance. The country’s spy agencies are the State Security Agency, military intelligence and police crime intelligence division.
Nevertheless, the apex court cited five reasons why the communications interception law is unconstitutional in that it violates privacy:
It fails to notify people who were surveilled of that fact afterwards.
The appointment process for the judge designated to grant permission for surveillance is not protected from interference by the executive.
The application process for interception warrants is inherently one sided and lacks safeguards to prevent abuse.
The law does not provide adequate safeguards for the management of intercepted data.
It fails to recognise that lawyers and journalists have a professional duty to retain the confidentiality of their sources and communications.
The court also found that bulk interceptions conducted by the State Security Agency’s signals intelligence agency, the National Communication Centre, in Pretoria, are unconstitutional. The reason is that there is no law that establishes the centre. Bulk interception involves the interception of communication signals on a large scale, and where no reasonable suspicion of criminality exists.
The court has suspended its finding for three years, to give parliament time to fix the problems in the law. But it remains to be seen what becomes of the communications centre.
It is meant to intercept foreign communication signals only. But, in its founding papers for the High Court case, the State Security Agency admitted that it had no way of distinguishing between foreign and local signals.
Importantly, the State Security Agency was warned that the centre was operating unlawfully. A Ministerial Commission of Enquiry into abuses of the then National Intelligence Agency pointed this out in 2008.
It is a stunning dereliction of duty by the spy agency’s leadership that the situation has persisted for over a decade. They should either shut the centre down permanently or introduce a law to regularise its existence.
One consequence of the Constitutional Court ruling may be that spy agencies will rely even more heavily than before on archived metadata. This is data about communications (not the content of those communications) which is stored by the phone companies. Agencies could use the more relaxed procedure set out in Section 205 of the Criminal Procedures Act. This loophole was pointed out by the Right2Know Campaign and Privacy International, which intervened in the amaBhungane case. But the issue did not find its way into the judgment, and may be the subject of another legal challenge in future.
In terms of the Criminal Procedures Act, the intelligence agencies merely need to prove that the metadata is relevant to a case to obtain a warrant. This hardly provides any privacy protections for the people under surveillance.
Unlike conversations, which may be difficult to make sense of, metadata yields huge quantities of rich information about a person’s movements, acquaintances and interests. It can give a minute-by-minute account of a person’s activities.
If the number of applications for interception warrants using the surveillance law, relative to the number of Section 205 applications, are anything to go by, then the agencies make much more use of communication metadata than communication content. The judgment is likely to see this trend intensify.
This loophole should be corrected. One way to do this is to make the judge empowered to permit surveillance responsible for all archived metadata requests. Another solution is to make the higher standards in the surveillance law also apply to metadata requests.
The judgment could also see more surveillance being driven underground. Given the outright criminality that has been exposed in the spy agencies recently, it is realistic to expect that rogue spies will attempt unlawful surveillance.
Private security surveillance may also become more commonplace.
The intelligence agencies may also be tempted to use intelligence sharing agreements to circumvent the prohibition on signals intelligence surveillance. The law does not prevent the outsourcing of activities that would be illegal in South Africa.
Some of the major surveillance agencies - such as the US National Security Agency and the UK Government Communications Headquarters - collude with foreign spy agencies to target South Africans from outside the country.
The Constitutional Court judgment is a huge victory, not only for journalists and lawyers who stand to benefit directly and immediately, but for broader society.
But it is only the start of the cleanup of state spying on people’s communications. The rot goes much deeper than the six areas of unconstitutionality identified by the court. The judgment must be used to dig all the rot out once and for all.
Further tightening up of law is one way of doing this. But, unless there is a proper review of the loopholes in all intelligence policies and laws, the rot is likely to persist.
Jane Duncan receives funding from the Open Society Foundation for South Africa and Luminate.
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