Privacy International recently reported that South Africa and the UK have admitted to running mass surveillance programmes, intercepting communications in bulk from citizens and foreigners.

In the case of South Africa, details of our government’s bulk interception capabilities came from an answering affidavit to a High Court case between amaBhungane journalist Sam Sole and South Africa’s intelligence agencies.

The answering affidavit was filed by attorneys on behalf of the Minister of State Security, the Office of the Interception Centres, the National Communications Centre, and the State Security Agency.

They revealed that they tap or record “transnational signals”, including data sent over undersea fibre optic cables that connect South Africa to the rest of the world.

While the respondents argued that bulk interception is aimed at foreign signal intelligence, they also admit that they can’t distinguish between foreign and domestic communication.

“The direction of communication can only accurately be determined by human intervention and analysis after the interception and recording process has been completed,” the affidavit states.

“Bulk surveillance systems cannot distinguish whether a communication emanates from outside the borders or simply passes through or ends in the Republic of South Africa.”

The affidavit states that the agencies intercept any communication that emanates from outside the borders of South Africa, and passes through or ends in the country.

This is done to ensure the state is secured against foreign threats.

“The Signal Intelligence collection process is informed by the National Intelligence Priorities, which include imminent and anticipated threats. It also covers information about organised crime and terrorist related activities. Bulk [surveillance] also deals with areas like food security, water security and illicit financial flows,” states the affidavit.

While bulk surveillance does not target an individual, the agencies do admit that it helps the state identify individuals, groups, and entities that pose a threat to the security of the nation.

Where there’s smoke

News of South Africa’s mass surveillance capabilities, and the abuse of state resources to target journalists and politicians, should not come as a surprise.

In 2006, the office of the Inspector-General of Intelligence issued a report which found that the National Intelligence Agency had abused the capabilities of the National Communications Centre (NCC) as part of Project Avani.

“The voice communications of at least 13 members of the public including senior members of the ruling party, the opposition, businessmen and officials in the public service were so intercepted,” the report stated.

“These facilities were used in a way that constituted a gross abuse of the bulk interception facilities of the NCC and constituted a circumvention of the legal interceptions regime”.

In 2008, the Matthews Commission found that the NCC was engaged in signals monitoring that was unlawful.

Among the concerns was a practise the NCC referred to as “environmental scanning” – monitoring of random signals through its mass surveillance capabilities.

“It is not possible to obtain prior judicial authorisation for this kind of monitoring since there are no known targets. Where random monitoring identifies the need to focus on a specific person or organisation, however, then the requirements of ministerial approval and judicial authorisation should apply,” the report stated.

The Commission also said there should be legal provisions for people’s personal information to be deleted.

“The [National Strategic Intelligence Amendment Bill] should provide for the discarding of personal information that is acquired in the course of intercepting communication where the information is unrelated to the commission of a serious criminal offence.”

The documents referred to above have been embedded at the end of this article.

RICA vs. human rights

Even though the revelations about South Africa’s mass surveillance came as a result of investigations into the state’s abuse of its powers, addressing the abuse may expose deeper underlying issues.

In their answering affidavit, South Africa’s intelligence agencies tried to provide the court with some assurance: “RICA provides for sufficient safeguards designed to ensure that bulk surveillance takes place in an environment that protects abuse and unlawful invasion of privacy.”

RICA is the Regulation of Interception of Communications and Provision of Communication-related Information Act of 2002. This is the same law that the Matthews Commission said the NCC was in violation of in 2008.

However, South African media have been reporting for years on the shortcomings of RICA and the loopholes exploited to work around it.

The big culprit here is the Section 205 subpoena, which is defined in section 205 of the Criminal Procedures Act 51 of 1977.

A Section 205 lets national intelligence agencies and the police’s crime intelligence apply to a judge or magistrate for access to a person’s telephone records. It also lets law enforcement track you using your cellphone.

Records that may be demanded under a Section 205 include numbers called, location details, and billing information. Once served with a Section 205 order, cellphone companies must hand over the requested information.

This raises the question: Even if the abuses of surveillance powers are stopped, does RICA do enough to protect people’s rights to privacy?

According to Murray Hunter from the Right2Know Campaign, there are even larger issues at play.

“The big underlying questions in the ongoing RICA court case are about whether the state’s security agencies activities make us safer as a nation, or not?” said Hunter.

New head of State Security’s domestic branch

In August, News24 reported that President Cyril Ramaphosa has appointed Mahlodi Sam Muofhe as the new head of the domestic branch of the State Security Agency.

Muofhe is an activist lawyer and advocate who counts human rights law among his specialisations. He casts himself as a specialist in human rights.

The news of Muofhe’s appointment comes after Ramaphosa released the report of a review panel he tasked to look into the State Security Agency.

“A key finding of the panel is that there has been political malpurposing and factionalisation of the intelligence community over the past decade or more that has resulted in an almost complete disregard for the Constitution, policy, legislation and other prescripts,” the Presidency said in a statement.

Among the recommendations of the report was the urgent development of a National Security Strategy, and the splitting of the State Security Agency into two branches: foreign and domestic.

Office of the Inspector-General of Intelligence (26 March 2006)

Matthews Commission Report (10 Sept 2008)

amaBhungane and Sam Sole vs State Security Agency et al, answering affidavit (19 July 2017)

High-Level Review Panel on the State Security Agency