In Nineteen Eighty-Four George Orwell described a state where “always the eyes were watching you”. Pervasive surveillance is held up as the hallmark of an unfree society.
While South Africa’s Parliament deliberates on the General Intelligence Laws Amendment Bill it faces the question: What are the justifiable limits of state intrusion into the privacy of its citizens? Recent answers from the United States Supreme Court have not been encouraging.
In a majority decision, five of the court’s nine judges overturned a constitutional challenge to widespread and often warrantless wiretapping under the Foreign Intelligence Surveillance Act on the technicality that the journalists, lawyers and human rights groups who had brought the challenge could not prove they had been targeted.
Ironically, the Act was enacted in 1978 to curb unregulated spying on political and activist groups by a paranoid Nixon administration. The law limited how US citizens could be spied on when the state collected intelligence relating to foreign powers or their agents.
Under the law, warrants had to be granted by the Foreign Intelligence Surveillance Court, which operates in secret. But since 9/11 successive administrations first sidestepped the law, then amended it to lower the privacy threshold – spies need only show that records were sought for an intelligence or terrorist investigation and no longer that the target was a suspect in such an investigation; and in many cases no individual warrant is required.
This greatly expands the government’s ability to monitor a wide range of communications involving US and non-US targets.
Scope for abuse
As human rights lawyers, journalists and researchers have shown, this monitoring could be abused to include communication not related to terrorism at all. The current draft of the General Intelligence Laws Amendment Bill provides similar scope for abuse to South African spies who monitor some communications without judicial authorisation.
Indeed, according to the damning Matthews Commission report, published in 2006, warrant-free interception is already a reality. Formally, interception of communication is subject to judicial authorisation under the Regulation of Interception of Communications and Provision of Communication-Related Information Act, which requires secret applications to a judge to intercept communication.
However, our spy agencies have sidestepped the requirement for warrants when it comes to “foreign” communications, questionably interpreting such communications as extraterritorial and not subject to the Act.
The amendment Bill now attempts to regularise this practice, writing it into law for the first time. The Bill defines “foreign signals intelligence” as “intelligence derived from the interception of … communication that emanates from outside the borders of the Republic, or passes through or ends in the Republic”.
In the crosshairs
The definition clearly risks netting South Africans or persons living in South Africa – who are in both cases entitled to constitutional privacy protections – in warrant-free interception, on at least three levels.
First, it would allow the interception of South Africans’ communications while they are overseas. Second, where only one leg of the communication is outside South Africa, the constitutional right to privacy of whoever is on the receiving end in South Africa is violated. Third, even where communication is entirely domestic – a Skype call or a Yahoo email between two individuals on South African soil – the Bill may still regard it as a “foreign” communication. This is because such communication passes through a foreign server and is therefore, by definition, a “foreign signal”.
In any event, unwarranted interception of foreign signals is in direct violation of the international covenants guaranteeing the right to privacy, to which South Africa is a signatory.
Checks and balances
Judicial oversight of surveillance is, therefore, crucial. In the US, despite problematic aspects of the Foreign Intelligence Surveillance Act, all surveillance, whether foreign or domestic, is subject to some safeguards. These include judicial oversight, such as retrospective warrants in cases where US citizens are netted, and the regulation of how information pertaining to non-consenting individuals is acquired, retained and destroyed.
The General Intelligence Laws Amendment Bill in its current form, by contrast, contains no protections whatsoever. No mention is made of the need for judicial authorisation in the collection of foreign signals, and no protection is provided where those “foreign” signals involve South Africans or persons in South Africa. This leaves the monitoring and interception of communication wide open to abuse.
The threat of surveillance will have a chilling effect on the work of human rights activists, researchers and journalists. Its corrosive effect on freedom echoes through our disturbing past. It is a past we would do well to turn our backs on.
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