The Gauteng High Court (Pretoria) is hearing arguments in a landmark constitutional challenge to SA’s surveillance law and the Rica Act specifically. Legalbrief reports that the amaBhungane Centre for Investigative Journalism filed the case after state spies taped phone conversations of prominent journalist Sam Sole during the ‘Spy Tapes’ era in 2008. It marks the first public airing on surveillance abuses since President Cyril Ramaphosa released his damning review of the State Security Agency (SSA) three months ago. Through its counsel, amaBhungane yesterday argued that Rica (The Regulation of Interception of Communications and Provision of Communication-Related Information Act) lacks the necessary safeguards to protect the public’s right to privacy and, as a result, some of its sections should be declared invalid. A report on the IoL site notes that Sole was investigating the decision by the National Prosecuting Authority (NPA) to drop corruption charges against former President Jacob Zuma when the surveillance operation was conducted. Advocate Steven Budlender, for amaBhungane, said under the current regulations, journalists and their sources were not protected. ‘Rica has no provision for who is allowed to access your private data once it has been intercepted, how it is stored or how your unrelated private conversations with your family, for example, are dealt with,’ Budlender said. He said there should be proper regulations of the state’s bulk surveillance architecture, saying it was wide open to abuse.Budlender also argued that if a subject was under surveillance, they should be notified once the surveillance has been concluded, saying this safeguarded the principle of open justice. In their heads of arguments, amaBhungane included numerous journalists whose phones were intercepted while they were conducting investigations on allegedly corrupt state officials.
amaBhungane has argued that people targeted for surveillance should receive notification after the fact – once any legitimately sensitive investigation is over.It says a system of delayed notification would limit the scope for abuse and bring SA’s surveillance laws in line with international equivalents, even in notoriously ‘spy-happy jurisdictions’ like the US. In an analysis on the News24site, Murray Hunter notes that as it stands, Rica’s secrecy clauses prevent anyone from learning that a warrant was issued to intercept their private communication, which has allowed corrupt operatives to spy wantonly on their critics and perceived enemies (including their own colleagues) without detection or consequences. amaBhungane’s challenge also seeks to regulate vast bulk of surveillance which never crosses the Rica judge’s desk in Pretoria. This is done through the National Communication Centre, where large quantities of the public’s meta data is reportedly collected and analysed with no legal oversight. ‘Should the amaBhungane challenge succeed, it will be a major rollback of surveillance powers that have infringed the privacy of government critics and watchdogs, and potentially millions of ordinary people as well. But the case, which is necessarily limited to the confirmed facts and circumstances of the spying on Sole, is no silver bullet against surveillance abuses. With cell phone network operators receiving more than a thousand such warrants a week, the scope for abuse is huge. In one known case, corrupt police appear to have used the weak checks in Section 205 to illegally spy on a journalist, and in another, senior legal figures, state regulators and senior police officials.
The Sole case was not the first or last attempt by the state to use intelligence, state security and the provisions of Rica to target journalists. In 2018, the Right2Know Campaign produced a report, Spooked: Surveillance of Journalists in SA, documenting the numerous instances where prominent journalists had allegedly been the target of state surveillance. A report on the News24 site notes that the South African National Editors’ Forum (Sanef) has announced its support for the constitutional challenge brought by amaBhungane. The secretive and unaccountable surveillance provisions of Rica leave it wide open to abuse and poses a chilling effect on media freedom and accountability journalism in SA,’ Sanef said in a statement yesterday. The UN Educational, Scientific and Cultural Organisation’s (Unesco) 2017 report, Protecting journalism sources in the digital age, found that, globally, journalism was increasingly under threat from laws which don’t protect journalists’ sources from the dragnet of mass surveillance and indiscriminate data collection. AmaBhungane’s legal challenge is a first and significant step in addressing the concerns raised in the Unesco report.
In the UK, Big Tech is raising concerns about a ‘ghost proposal’ from spies that would allow them to eavesdrop on encrypted messages. Advocacy groups, security experts and tech giants, including Apple, Google and WhatsApp, have signed an open letter to Britain’s Government Communications Headquarters (GCHQ) that says its spies should not be allowed to access private digital messages. CNN reports that this is in response to a public proposal made last year by two high-ranking officials at the UK spy agency responsible for signals intelligence. Ian Levy, the agency’s technical director, and Crispin Robinson, its head of cryptanalysis, suggested in November that ISPs could ‘silently add a law enforcement participant’ to encrypted group chats or calls. The officials argued that the approach would avoid weakening encryption, which is a way to encode messages, and claimed that it would not be any more intrusive than older technologies used by spy agencies to snoop on telephone lines.
The European Court of Human Rights’ decision in a recent case offers a cautionary tale against covert workplace surveillance, writes Louise Lawrence, a partner in the employment team at Winckworth Sherwood in a HR Magazinereport. Lawrence writes that having found significant irregularities in stock levels, a manager of a Spanish supermarket fitted both visible and secret cameras as part of a wider investigation. The employees were unaware that they were being closely monitored by the hidden cameras. But, Lawrence says, the court found, in Lopez Ribalda and others v Spain that the supermarket had not struck a fair balance between the employees’ rights to privacy and the employer’s interest in protecting its property. Lawrence writes that if employers wish to conduct workplace surveillance, they must undertake a risk assessment to establish whether the monitoring is necessary, whether that monitoring outweighs the employees’ general privacy rights, and what measures should be taken to ensure that the infringements on the right to private life are limited to the minimum necessary.