Spooks skip legal process

South Africa has the technical capacity to conduct cross-border electronic eavesdropping and 300 of a planned 500 spies are already at work doing so, despite the fact that legislation governing its use is only now being discussed in Parliament.

Kerenza Millard, a legal adviser to the ministry of intelligence, cited the figures in a briefing to Parliament’s Intelligence committee on the Intelligence Services Amendment Bill and the National Strategic Intelligence Amendment (NSIA).

The first of the two Bills, introduced a fortnight ago, creates a legal framework for the innocuous sounding National Communications Centre, which, in turn, houses the National Intelligence Communications Centre (NICC), South Africa’s ‘Signals Intelligence” network. The second sets out how the centre will operate.

The centre’s cross-border mandate includes the interception of military communications and messages destined for embassies from their home countries and more broadly the ‘collect[ion] of information details of importance to the country,” Millard said.

According to the NSIA, the NICC ‘will protect and advance international relations and the economic well-being of the Republic ... undertake all cryptographic solutions and information communications technology security systems ...
and support the prevention or detection of regional and global hazards or disasters that threaten life, property and the environment”.

The ministry admits, however, that ‘incidental” traffic could also be intercepted.

The centre is already operating. The purpose of the proposed legislation is a ‘constitutional requirement to establish [the centre] in law”, said Millard.

When monitoring communications within the country spooks are legally obliged to obtain warrants from a judge as a safeguard against abuse.

The NICC, working outside the country, does not have this restriction, but once it becomes a recognised scheduled department, with its own director and financial comptroller, it will become ‘subject to the oversight of the inspector general for intelligence”.

Once a year the director general of the newly created body will appear before Parliament to ‘certify that there has not been contravention of the Interception of Communications and Provision of Communications Related Information Act”, states the Bill.

The centre is described by officials as comparable in purpose, but not size, to the United States’s ‘National Security Agency or the United Kingdom’s General Communications Head Quarters”.

Other models cited by an intelligence ministry powerpoint presentation include German and Canadian oversight systems.

According to the presentation, communications or any electronic transactions originating abroad can be traced and form part of the eavesdropping function of the NICC, which has been established to monitor ‘all forms of communication”. 

As the centre operates in a legal void and no details of its operations are known, it is difficult to establish whether the rights of any South African citizen abroad have been violated through intercepts.

The intelligence committee is regarded, even by some of its own members, as even more protective of its secrecy than the intelligence services themselves.

The presentation was terminated when ANC committee member Ismail Vadi requested that the meeting and discussion of the two Bills be adjourned as he was worried that ‘operational details” were being discussed and that the integrity and security could be compromised.

Further public hearings are scheduled for the end of July and the beginning of August.

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