An explosive report was recently tabled in Parliament showing government's growing interception of private communication, but it slipped under the radar thanks to the festive season.
The report showed that requests for interception of private communication in South Africa are on their way to more than doubling in three years.
The report was tabled by Judge Yvonne Mokgoro, the designated judge tasked with considering interception applications in South Africa. Her term of office has since ended. It reveals in detail the number of applications made, and shows fears over growing surveillance of citizens are well-grounded.
We asked UJ academic Professor Jane Duncan, an expert in the field, to look at Mokgoro's report. Here are some of her insights.
- The entire system of the judge reporting on her own work is a bit of an accountability fail.
"It's actually a problem that the annual report about interceptions comes from the same person who grants the directions, as this means that the judge marks her own homework. Rightfully a body that is independent of the judge's office should be responsible for developing it. The fact that this doesn't happen compromises oversight."
- Mokgoro takes transparency in this notoriously secretive field seriously but the uptick is concerning.
"There's been tremendous improvement in transparency around the use of lawful interception during Judge Yvonne Mokgoro's term of office. [But] the increase in interception requests especially for state security agencies is of concern."
- It's not true that we can't rate the success of all this spying on citizens. We can and should justify it.
"Mokgoro basically says we have no way of assessing of whether this uptick in interceptions is actually yielding the results of bringing down crime. If more agencies are turning to use RICA* when the effectiveness of doing so is in question, then we really have a problem. I don't accept her argument that there's no objective way of establishing the success rate of these interceptions. In the US, one of the things the judge has to report on is the number of interceptions that result in an arrest and in convictions. There's no reason why South African judges can't provide a similar breakdown."
- If the judge has seen the potential for abuse why not call for an investigation?
"I think it's good she recognises the potential for the abuse of surveillance by the state and the public controversy around it but I think she could have gone one step further and called for the Office of the Inspector-General of Intelligence to do an investigation."
- The political manipulation of our country's intelligence agencies will only get worse if they don't get better at analysing the information they gather.
"The judge made a very good statement that ... the culture of the intelligence services needs to shift to a more professional culture: in other words, less of a politicised and partisan culture. What I found particularly revealing about her statement was that the State Security Agency seems to lack professional analytical ability. Now analysis is possibly the most important part of the intelligence cycle: technological improvements are increasing the ability of agents to collect information and in fact many agencies are over-collecting information. But it's the ability to analyse the information and turn it into professional intelligence that is what really matters. Unfortunately, intelligence is often manipulated by policy makers in the absence of strong analysis. This will be a problem in the professional use of the information gathered. This makes the whole system susceptible to political manipulation which all available evidence is pointing to."
- The report is mum on the elephant in the room: regulating mass surveillance.
"There is a clear admission [in the Joint Standing Committee on Intelligence's report to Parliament, the Parliamentary oversight body that receives the RICA judge's report] that the country is undertaking mass surveillance. This report speaks about the activities of the National Communications Centre [in detail]. It's a fancy way of saying government is undertaking mass surveillance and that should concern us all. Yet no mention is made of possibly the biggest controversy in the country in terms of interception, which is very concerning: the lack of regulation of the National Communications Centre. The mass-surveillance capacity of the state remains the least regulated in the country. That is a problem that has been pointed out by the Matthews commission of inquiry and remains unaddressed."
- There is no way to square mass surveillance with our rights to privacy.
"Mass surveillance is inherently disproportionate when it comes to the right of privacy. It collects information on people irrespective of whether they're considered to be suspects or not. [Various international bodies] have expressed concerns over disproportionate surveillance. It does concern me that the biggest, hottest issue when it comes to surveillance globally isn't really addressed in her report. And in fact if you look at the Joint Standing Committee report closely it ... suggests that they're not only making do with what they've got, but they're actively expanding their surveillance capacity."
- Encryption of private communication, like WhatsApp, means state agencies may get aggressive about hacking our information.
"The State Security Agency will likely attempt to expand their surveillance powers because, as the Mokgoro report notes, they are increasingly losing their surveillance capacity because so much of private communication is encrypted - like WhatsApp. The way the UK is dealing with this is particularly pernicious because they've just passed a law [the Investigatory Powers Act] giving themselves the power to undertake bulk hacking. So what we're seeing is increasingly intelligence agencies using aggressive forms of surveillance and hacking people's devices to get around the problem of encryption. I sincerely hope the drift of government thinking in South Africa is not going in that direction."
- Vague and overly broad applications are being made to justify intercepting citizens' information.
"Mokgoro points out that there have been concerns about the overbroad applications for interception directions that are being made. You can apply for an interception directive if you suspect a crime is or may be committed. It is speculative. For example: An interception order was granted on [Sunday Times journalist] Mzilikazi wa Africa on the grounds he was a suspected gun runner, when he was going to Mozambique to interview a source."
- The system is skewed towards the spy agencies.
"No one in the application process for interception directions is arguing on behalf of the person whose communication is likely to be intercepted. One of the ways to deal with this is to have a public representative in the process to then argue the alternative case. In the absence of [that] the vast majority of interception requests are approved because the judge has to take what the agencies are giving her at face value. The applications that are approved vastly outnumber those rejected which suggests the system is skewed towards applicants [usually the State Security Agency, the Crime Intelligence Division of the South African Police Service, and Defence Intelligence and more recently the Financial Intelligence Centre]."
- Why aren't South Africans being notified that their communication was intercepted?
"In the US, Germany, Austria, Taiwan, Chile and Japan, after 90 days of interception direction having lapsed you are informed of the fact that your communication has been investigated. It happens when the investigation reaches a non-sensitive stage. It is argued that this is a basic right. It's necessary to protect your rights to privacy because if you can learn about abuses of the system in retrospect then that prevents abuses in future. Mokgoro remains silent on user notifications in RICA reforms she argues for, which is a pity."
- The grabber spying device needs to be regulated.
"Her comments on the grabber, the mass surveillance device that we suspect the police are using, don't go far enough. She's saying once an interception directive is given to the police it's their decision about what technology to use but the problem with the grabber is that it's a mass-surveillance device that collects far more info than it needs in order to target specific individuals. I would make the argument that it's not good enough to leave the question of technology to the law-enforcement agencies and the grabber as a technology needs to be regulated in RICA."
- SIM card registrations are pretty much useless
"Mokgoro mentioned that RICA needs to be tightened up when it comes to SIM card registrations. Wholesalers are selling pre-RICA-ed SIM cards which is obviously unlawful. I would argue the whole process of SIM card registrations needs to be done away with. There's no evidence that SIM card registrations results in a reduction of crime. No criminal worth their salt will commit a crime on a SIM card registered in their name. it just ain't going to happen. Some countries have abandoned it because it's expensive and doesn't meet its stated goal of reducing crime. Instead, it leads to new crimes, for example identity theft. I would argue that there needs to be a review of the wisdom of SIM card registration rather than a tightening of existing regulations."
* The Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) is a South African law that regulates the interception of communications and associated processes such as applications for and authorisation of interception of communications.