The private communications of South African citizens are routinely and often illegally intercepted by the State Security Agency. Essentially the job of the agency is to protect the country from any threats to national security. However, ill-regulated intelligence operations and a lack of oversight of the SSA – we still don’t have an Inspector-General of Intelligence – leaves the field wide open to abuse. Can we protect ourselves from our protectors? By HEIDI SWART.

At a Wimpy somewhere in Pretoria, a bald man in his 50s, in PT shorts and a T-shirt, sits sipping coffee. The former intelligence operative suddenly halts his conversation and says, “Look, one thing you need to understand. I’m telling you this because, central to all of it, is interception.”

By “all of it”, he means the day-to-day surveillance activities of South Africa’s State Security Agency’s (SSA) national and foreign branches. The SSA’s national branch was formerly the National Intelligence Agency (NIA), while the foreign branch is the old South African Secret Service (SASS).

With ‘interception’, he means these organisations’ abilities to monitor and record citizens’ telecommunications – virtually any voice and data communications occurring via the country’s telephone and cellphone networks. This includes listening to and recording cell and telephone calls, as well as monitoring and recording internet browsing activity, e-mails, text messages, messenger services, and social media pages. The SSA’s mandate is to “provide the government with intelligence on domestic and foreign threats or potential threats to national stability, the constitutional order, and the safety and well-being of our people.”

The former operative, still sipping his coffee, explains it in more practical terms: “There is a difference between information and intelligence. Information is confirmed intelligence. Intelligence is raw data, obtained via eavesdropping, undercover agents in the field, or informants. Intelligence is also gathered via interception – often illegally.”

Then, he makes a distinction which at first seems like a technicality, but which holds profound implications for the privacy of our telecommunications: “Information can be used to open an official docket. Intelligence cannot.”

Although these are working – not legal – definitions of these concepts, they highlight the significant legal obligations of law enforcement agencies, like the SSA: It is illegal for state intelligence services to obtain intelligence via interception before they have opened an official case docket, save in certain emergency situations — in which case strict legal procedures still apply.

But, under normal circumstances, interception is a last resort; first, law enforcement must gather and confirm intelligence through old-fashioned detective work, like gathering physical evidence and interviewing suspects. If this information proves insufficient to close the case, they can turn to electronic interception.

This use of interception is governed by Rica – the Regulation of Interception of Communications and Provision of Communication-related Information Act of 2002. According to Rica, intelligence forces may only secretly intercept communications between two people if the specially appointed Rica judge authorises it with an interception order after reviewing the application based on the case docket.

But a former senior military intelligence operative’s description of the nature of intelligence gathering shows why intelligence services would want to intercept right off the bat — without opening dockets and following Rica processes.

This is because intelligence services are not always out to prove cases against criminals. South Africa’s intelligence forces, says the former operative, originated in the South African Defence Force during apartheid. In the military, predicting enemy movements is a key intelligence focus.

“Our premise was always a military operational intelligence problem. You form a hypothesis. This starts an information cycle, and this must always be initiated by your commanding officer. For example, I want to know what my enemy’s plans are. How are they behaving? And how are we going to react? You need to know how the enemy will react and defend themselves once you attack. This is where we differed from crime intelligence. They are relatively new to the game. We often had friction with them, because they did not work on the basis of prediction. They just worked on a case-by-case basis. They were not good with predicting crime.”

But, in South Africa today, who is the enemy, and whose actions require prediction?

Providing some answers is a leaked SSA document illustrating this emphasis on predicting the public’s actions through intelligence gathering. Classified as secret – the second highest level of access restriction – and titled “The 2014 National Intelligence Priorities”, the document appears to be a presentation by the SSA to the Justice, Crime Prevention and Security (JCPS) cluster.

This cluster is comprised of several governmental entities (including, but not limited to, the Department of Justice and Constitutional Development, the SAPS, and the Ministry of State Security). Its mandate sprouts from the Medium Term Strategic Framework, part of the National Development Plan. The JCPS is committed to the vision of ensuring that “All people in South Africa are and feel safe”.

The presentation reveals that spying on people not necessarily engaged in illegal activities is the norm, and makes it clear that intelligence forces will not hesitate to utilise technology to reach their surveillance goals. The document states that countering the “most serious threats to our national security” that require “immediate and sustained intelligence collection” involves the “maximum use of covert human and technical means”.

Although the document does not specify what is meant by “technical means” of covert intelligence collection, it is known that the SSA has access to various types of covert surveillance technology, including the ability to secretly intercept citizens’ data and voice communications over all mobile and landline networks in the country.

This intelligence gathering is justified by several “threats to national security”. For example, one intelligence priority for 2014 centred on national and provincial elections. The SSA Domestic Branch was tasked with investigating and counterplanning for a “so-called ‘Arab Spring’ uprising prior to elections”.

The Arab Spring, a wave of revolutionary protests that swept throughout the Middle East and North Africa from December 2010 until mid-2012, saw the governments of several countries deposed; it was largely organised by civilian youth (who were exhausted by corrupt authorities and a lack of life opportunities) through the use of mobile communications. Thus, arguably, the communications of persons of interest could be intercepted as part of a strategy to prevent a similar occurrence in South Africa.

This type of spying threatens more than just communications privacy. Murray Hunter, National spokesperson of the anti-secrecy group, the Right2Know Campaign, says the SSA’s intelligence gathering on political activism “poses a serious risk to freedom of expression and freedom of association, because when people who are involved in protest and activism feel policed, watched or intimidated, it can clamp down on their ability to participate in democracy or campaign for their causes.”

Another area of interest for the SSA was investigating and counterplanning for “violent industrial action”, with the investigation of “inter-union rivalry as a driver of violent industrial action” high on the agenda. The transport industry was to be watched to allow for “counterplanning for violence in the taxi industry”.

The investigation of plans to “sabotage the implementation of the e-tolling in Gauteng” was deemed necessary. Keeping an eye on communities was also a priority, with counterplanning for violent community protests viewed as critical.

“Monitor(ing) demands for sanitation services and the provision of electricity, water and housing to identify emerging flashpoints of protest action” was also prioritised, as was a “less critical threat to our national security” which requires “intelligence monitoring” through “primarily open and diplomatic means”.

Numerous areas of surveillance are listed, including terrorism, espionage, violence against foreign nationals, gangsterism, and the private security industry, to name a view. This is a much more detailed description of security threats that the one which is provided on the SSA website; the site only broadly refers to terrorism, sabotage, subversion, espionage and organised crime.

But the definition of what constitutes a threat to national security is vague, and with reason, as Prof Laurie Nathan, a specialist in intelligence regulation at the University of Pretoria, explains: “What ought to be the case is that they should only conduct surveillance inside the country in respect of actual or planned criminal activity. But the legislation doesn’t say that. The legislation allows them to do surveillance in relation to possible threats to national security. What does that mean? Threats to national security? It means anything they want it to mean. So the legislation is too broad and vague. It gives them too much leeway.”

Hunter concurs: “In 2013 South Africa’s intelligence laws were rewritten to explicitly exclude ‘lawful political activity, advocacy, protest or dissent’ from the national security mandate. But fast-forward to 2016, and it’s clear the problem remains.”

This is not the only aspect of intelligence legislation that is murky. What laws protect the communication privacy of dissatisfied miners, mothers unhappy about blackouts while cooking, or taxi drivers protesting against e-tolling? What laws keep intelligence services accountable should they decide to eavesdrop on political supporters who may or may not become violent during a future march?

History provides some answers. In 2006, then Minister of Intelligence Services, Ronnie Kasrils, established a ministerial review commission on intelligence in response to findings that intelligence services had illegally used the facilities of the National Communications Centre (NCC) to intercept the telecommunications of businessman Saki Macozoma and at least 13 others in 2005. (The NCC is one of the SSA’s main interception facilities.) Chaired by former Deputy Minister of Safety and Security, Joe Matthews, it became known as the Matthews Commission.

Nicknamed “The Farm”, the NCC is located near Pretoria at the SSA’s headquarters and an array of satellite dishes can be seen from the Delmas Road. Kasrils wanted the commission to review intelligence legislation so as to strengthen the laws — and rebuild public trust. Thus, the NCC was scrutinised.

The commission found that “the NCC appears to be engaged in signals monitoring that is unlawful and unconstitutional. This is because it fails to comply with the requirements of the Rica which prohibits the interception of communication without judicial authorisation”.

The centre’s capabilities amplified the significance of this finding.

The NCC houses the government’s bulk interception facilities. Bulk interception entails monitoring and recording thousands to millions of people’s communications simultaneously for indefinite periods. It is also known as environmental scanning. Although the exact capabilities of the NCC are still unknown to the Daily Maverick, the capabilities of bulk interception equipment available for purchase by governments worldwide, are. Generally, bulk interception collects what is referred to in the budding global multibillion-dollar interception industry as “Big Data” — petabytes of intercepted data that can be stored for years.

A common misconception is that thousands of personnel listen to millions of hours of conversations, or sift through masses of emails randomly. In reality, sophisticated software is used to search for needles in the haystack. To effectively use such software, intelligence services must have a clear idea of who their targets are before delving into the data. Voice recognition software, certain versions of which can identify a specific person’s voice in multiple languages, can be used to find someone’s past conversations in the mass of data.

This means that intelligence services would require a recording of a target’s voice. This can be easily obtained by calling that person and pretending to be a telesales consultant. Since everyone is obliged by Rica to register their sim cards, it is easy for government to link a name to a number. Keyword searches can also be run, much like a Google search. This means intelligence services will have to know the specific code words used by organised crime syndicates, or terrorists, for example.

This sounds like a powerful crime-fighting tool, but there’s a catch. According to Nathan, who also served on the Matthews Commission, bulk interception and the storing of masses of data are unregulated.

“We have no legislation. And therefore, what they are doing is illegal and unconstitutional. We (the Matthews Commission) recommended that there be some kind of regulation of what they are storing. But they didn’t want to do that and there’s not enough pressure on them to do so,” said Nathan.

The NCC can also perform real-time targeted interception — listening to an individual’s conversations or reading their messages or emails as the communication is taking place. This is similar to the work done by the Office of Interception Centres (OIC), the other major interception facility of the SSA. But, unlike the bulk interception facilities at the NCC, the OIC is regulated by Rica. Arguably, Rica could be applied to bulk interception at the NCC, since specific people’s communications are targeted within the bulk data. But whereas Rica refers specifically to the OIC, it makes no mention of the NCC. In fact, the NCC is not mentioned in any legislation.

To rectify this, Kasrils tabled the National Strategic Intelligence Amendment Bill in 2008 to provide regulation for the NCC too. However, the bill perished in Parliament, Kasrils resigned in 2008 following Thabo Mbeki’s recall as president, and the Matthews Commission’s report started gathering dust.

Then, in 2013, the controversial General Intelligence Law Amendment Bill (GILAB) became law. It was intended, among other things, to provide for legal regulation of the NCC. In 2012, Nathan made a submission to the ad hoc parliamentary committee reviewing the bill, reiterating the Matthews Commission’s findings that the NCC was operating unlawfully and unconstitutionally. He made several recommendations for changes to the Bill regarding the NCC. However, the final act did not so much as mention the NCC.

There are, however, oversight bodies responsible for holding the NCC accountable, even if only to its own internal policies. These include Parliament’s Joint Standing Committee of Intelligence (JSCI) and the Office of the Inspector-General of Intelligence (OIGI). It was the IGI that investigated the 2005 Macozoma case and found gross abuse of the NCC facilities. But, in March 2015, Faith Radebe resigned as inspector-general. She is yet to be replaced.

The IGI reports to the JSCI, and the JSCI is responsible for appointing an IGI. The JSCI’s failure to do so, their frequent practice of meeting behind closed doors, and their lack of reporting to the public, have not instilled confidence.

But it seems the political will to strengthen legislation is absent. According to Nathan, the intelligence community is involved in unlawful political activity, and some members of the ANC are using the intelligence services to gather intelligence for political purposes. “Based on the evidence, they are not interested in oversight of the intelligence community,” said Nathan.

And, compared to the United States and Britain, where government bulk surveillance has been under fire, there has been little pressure on the South African government. Edward Snowden’s revelations of the US government’s bulk interception powers has led to the replacement of the notorious Patriot Act by the Freedom Act (the latter being short for the Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online monitoring Act). In Britain, opposition parties and civil society have sharply criticised the newly introduced Investigatory Powers Bill — legislation that government says will improve oversight of intelligence services.

The UK government has been forced to make an operational case for bulk interception – in other words, prove that these powers are truly necessary to ensure people’s safety.

But the South African government remains in a cozy spot. In response to a series of questions about the spying activities described in the presentation about the 2014 National Intelligence Priorities, SSA spokesperson Brian Dube responded: “As you know very well, we don’t discuss in the manner you want to, classified documents obtained unprocedurally.”

In response to a string of questions about the lack of legal regulation of the National Communications Centre, Dube said, “…the only thing worth commenting on is that as indicated in the minister’s budget speech last year, work is ongoing on the review of the White Paper on Intelligence as well as review of related policies and directives.”

Asked for comment on the allegations of misuse of intelligence services by the ANC, spokesman Zizi Kodwa said, “We’re not going to respond to that.” The Presidency and the JSCI had not responded to questions two weeks after they had been sent.

The words of the former apartheid military intelligence operative suggests one possible reason for the lack of accountability: “Remember, Zuma was head of ANC intelligence. I can’t tell you what he is thinking, but I think I can get into his head, to an extent. You develop a sense of being untouchable. You do what you have to do, when you need to do it. We had lectures on ethics in intelligence — we could recite them. But when it came down to it, it was all about the cause. If another person was not for the cause, that person had no rights.”

Interception is a critical tool for law enforcement, but three facts remain:

First, the state has access to powerful, military grade interception technology.

Second, their primary interception facility, the NCC, performs bulk interception that is not legally regulated.

And, finally, it is part of the SSA’s official mandate to spy on ordinary citizens for security purposes.

Combined, these factors pose a powerful threat to the privacy of innocent people. DM

Original photo by aldisley.

This story was commissioned by the Media Policy and Democracy Project, an initiative of the University of Johannesburg’s department of journalism, film and TV and Unisa’s department of communication science.

Heidi Swart is a journalist who has extensively investigated South Africa’s intelligence services.