The amaBhungane Centre for Investigative Journalism was in the high court in Pretoria this week, arguing that the laws about who you can surveil, and how you can do this, need to change. Its case focuses on two parts of the Regulation of Interception of Communications and Provision of Communication-Related Information Act — better known as Rica. This is a piece of legislation that requires you to give all your details when getting a new SIM card. It also allows the government to track you down and intercept your messages and calls.
AmaBhungane’s first point of contention is that Rica does not adequately regulate surveillance.
In its argument, amaBhungane said there are five constitutional flaws with Rica:
- People never know that they have been the target of an interception order, allowing someone to listen to and read their communications;
- There is no control over how data that is gathered about a subject is copied, examined, shared, sorted or used. This means other people could look at sensitive information, or that pictures of your children could be stolen from a police computer;
- Telecommunication companies have to keep track of any communication (not the content) for at least three years. But there is no control over who can access this, or how the data is protected;
- A retired judge is nominated to rule on any applications to intercept someone’s communications, but those applications are one-sided and nobody argues against them; and
- There is no protection in Rica for professions that have to protect their sources and keep their communication private, such as journalists and lawyers.
The second point is that there are certain types of interception that aren’t regulated by Rica.
This includes bulk interception — which whistle-blower Edward Snowden revealed Western nations were doing when he leaked classified information on domestic surveillance collected from the US National Security Agency.
This type of interception reads through great amounts of data and flags anything it has been told to keep an eye out for — and that data is then available to the authorities.
Rica also doesn’t have an approval mechanism for what are called “foreign signals” — so any communication that takes place on a system outside of South Africa’s borders can be surveilled. This includes emails on overseas servers, such as Gmail, or WhatsApp messages to people abroad.