David Le Page and Khadija Magardie
Extraordinary powers to tap cellphone calls and Internet communications are on the way for South Africa’s security services following proposals by the South African Law Commission to amend bugging legislation.
Among the proposals are:
l Forcing cellular networks to purchase extremely expensive monitoring equipment
l Establishing permanent centralised monitoring facilities for this purpose
l Demanding that IDs be presented when buying pre-paid cellular services
l Extending the definition of what may be intercepted from conversations to communications, thereby taking into account the development of Internet communications
l That it become illegal to provide a communications service which can’t be monitored.
The report pays lip service to “international norms” but appears to ignore the fact that United States law, for example, prohibits the National Security Agency and military intelligence services from surveilling citizens within the country’s borders. However, in South Africa, the army and both intelligence services – which have such monitoring powers – will continue to have them under the Law Commission’s proposals.
In France, potential abuses of wiretaps are limited by giving the security services annual quotas for such actions. Such precautions have not been recommended by the Law Commission, nor have precautions for handling the records of such monitoring.
Fortunately, the intelligence services’ efforts remain subject to judicial oversight, and the commission has rejected the efforts of a range of parties to leap on to the bugging bandwagon: the South African Telecommunications Regulatory Authority wanted to monitor telecoms pirates; the President’s Office wanted to bug the public service; private investigators wanted to legalise what they already do illegally. The commission also rejected the idea that only specific judges should deal with matters of “state security”.
But the proposals also have serious implications for the cellular networks – and their customers.
Sources within MTN estimate that the equipment which will be required for cellular bugging will cost up to R100- million, despite the fact that they already pay 5% of operating income as an annual licence fee to government, and that bugging their customers was not an original licence condition. Especially onerous is the provision that the telecoms minister may specify the equipment to be purchased for such purposes.
The Law Commission raises contradictions in its stated intention that bugging strategies may only be used in cases of serious crime. Serious criminals often have access to serious resources. Since powerful encryption technology is already available to anyone with an Internet connection, it’s entirely possible that such individuals will avail themselves of it. In such cases, the millions of rands spent on tapping calls will be wasted.
Satellite phones will be enormously difficult to monitor. Operators are not going to be able to modify satellites already in orbit in order to cope with the demands of the Law Commission.
A major contradiction exists between the commission’s requirement that “proper records regarding identities and addresses be kept in respect of [telecoms] clients” and other government efforts to make telecoms services universal.
There are already over 2-million pre-paid cellular users, whose identities are entirely unknown to the networks. Crime at its present levels preceded pre-paid phones, and is unlikely to be eliminated by photocopying the IDs of pre-paid users.