Professor Jane Duncan has released a new book titled Stopping the Spies: Constructing and resisting the surveillance state in South Africa.

In the book, Duncan argues that the Rica process and institutions have been run down, and the public safety and security risks are huge.

The Regulation of Interception and Provision of Communication-related Information Act (Rica) came into effect in 2009 and serves as the basis for the lawful interception of citizens’ communications.

The impact is mostly felt by South Africans when they have to produce identification and proof of residence when registering new cellphone numbers.

The type of information mobile service providers give to law enforcement officials on receipt of a subpoena as part of the Rica process includes:

The International Mobile Subscriber Identity number associated with a SIM.

The handset’s International Mobile Equipment Identity number.

Call dates and types.

Whether a call was made or received and its duration.

The number dialled or received.

Outgoing SMSs.

The base stations the phone connected to and the originating base station.

In her book, Duncan argues there are major flaws in the system.

She said the police and the State Security Agency are increasingly heavy users of the Rica system, and that the act has become dated.

Duncan pointed to the Glenn Agliotti case, where she argued his acquittal was partly due to the fact that his cellphone records were obtained illegally during the investigation.

She quoted Judge Frans Kgomo, who lambasted the cavalier approach of the police to their acquisition of cellphone records.

Abuse of the system by the police was demonstrated by Hodes SC during cross-examination of these cellphone ‘experts’. This elicited a question from me at one stage to the effect whether if and when this country’s state president’s phone records were subpoenaed, whether the cellphone companies would issue them out without much ado. The answer was that those records would be extracted and handed over without asking another question. It is my considered view that if this state of affairs did occur or does occur and is allowed to persist, we should all be afraid.

Activism is needed

In an academic paper with the same title as her book, Duncan argued that state surveillance can be challenged through activism.

“Activism against unchecked communications surveillance in the wake of the Snowden revelations have showed that reforms can be won when these practices are resisted,” said Duncan.

She said activists who are serious about challenging surveillance state powers need to place both the politics and the economics of surveillance at the forefront of these struggles.

“When surveillance becomes part of the programmes of mass movements, various questions begged to be answered,” she said.

Instead of focusing on “surveillance as being everywhere and nowhere”, which can be paralysing, she proposes bringing “agency back into the picture”.

This can be done by challenging individuals rather than a faceless structure that cannot be changed through activism.

Rica challenged in South Africa

In 2017, the amaBhungane Centre for Investigative Journalism launched a constitutional challenge against Rica and unregulated bulk communication interceptions.

amaBhungane argues that there are five constitutional flaws were Rica regulates, including that the target of the interception order is never informed of the order, and that there is no oversight for the storage of data by private companies and the accessing of this data by state officials.

Now read: Rica challenged in South Africa