The amaBhungane Centre for Investigative Journalism has launched a constitutional challenge against the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) and unregulated bulk interception.

“RICA serves as the basis for the lawful interception of citizens’ communications, but we contend that there are fundamental flaws in RICA and that various sections are inconsistent with the Constitution,” said amaBhungane.

“We are going to court, starting with the high court in Pretoria, so as to strengthen the protection of journalists and the public against the abuse of this arguably necessary, but intrusive legislation,” it said.

The complaint addresses two categories:

The areas where RICA regulates surveillance, but does so inadequately. Where it fails to regulate certain monitoring activities at all.

Where RICA does regulate, amaBhungane argues that there are five constitutional flaws:

The target of the interception order is never informed of the order – even after the period of interception has ended and an investigation concluded. RICA is silent about the procedure state officials should follow when examining, copying, sharing, and storing the intercepted data. Where the interception is found to be irrelevant, there is no certifiable procedure for the data to be destroyed. RICA requires private companies to store certain information, but does not provide oversight mechanisms. There are deficiencies in the regime for oversight by the retired judge nominated to rule on interception applications. RICA fails to protect targets of interception who have a legal duty to protect the confidentiality of communications and sources, such as lawyers and journalists.

There is a second category of problems with RICA, in that it does not regulate certain kinds of interception at all.

RICA does not cater for the regulation of “bulk interception”, which uses computers to scan massive flows of data.

RICA does not provide an approval mechanism regarding interception or surveillance of “foreign signals”, which may ensnare people in South Africa.

The intelligence community presently monitors such communication without a warrant.

“We argue that because it inevitably limits fundamental rights… it is essential that its implementation is subject to proper checks and balances,” said amaBhungane.

The founding papers were served on the Minister of Justice, police, state security and communications, and interested parties last week.