South Africa’s Surveillance Law Amendments: Striking a Balance Between Security and Privacy

South Africa’s Surveillance Law and the Threat to Citizens’ Privacy

An Overview of the Current Situation

In February 2021, the South African Constitutional Court declared sections of the Regulation of Interception of Communication and Provision of Communication Related Information Act (Rica) unconstitutional, highlighting concerns over citizens’ right to privacy. The court gave parliament three years to pass a new law that addresses these constitutional shortcomings, with a looming deadline of February 2024. Unfortunately, the proposed amendment bill falls short in safeguarding privacy and ensuring adequate oversight.

The Flaws in Rica

Rica, originally designed to protect privacy, combat crime, and promote national security, has been subject to abuse by rogue elements in intelligence. The court case brought by the amaBhungane Centre for Investigative Journalism shed light on several weaknesses within Rica:

– Lack of notification: Individuals who are subjected to surveillance are not informed about the violation of their privacy.
– Lack of independence: The appointment and renewal processes for the Rica judge lack independence, as the judge is appointed by the justice minister.
– One-sided decision-making: The Rica judge only hears from the applicants seeking interceptions, leading to decisions based on one-sided secret evidence.
– Inadequate data management: Rica fails to ensure the safe and responsible management of intercepted data.
– Neglecting professional confidentiality: Rica does not recognize the professional duty of lawyers and journalists to protect their sources and keep their communications confidential.

In response to the court’s ruling, the justice ministry proposed amendments to Rica, but these amendments are fundamentally flawed and fail to address the core concerns raised by the court.

The Issue of Post-Surveillance Notification

The proposed amendments by the justice ministry largely reproduce the court’s interim measure of requiring state agencies to notify surveillance subjects within 90 days of an interception direction lapsing. However, a concerning addition to the amendment bill is a clause that allows the judge to withhold notification if it is deemed that notifying the individual may have a negative impact on national security. This clause is overly broad and introduces speculation into decision-making, as it only requires a potential negative impact, rather than a demonstrated national security threat. Furthermore, the amendment bill does not specify an ultimate deadline for notification, leaving the potential for indefinite delays.

The Independence of the Rica Judge

While the justice ministry attempts to address concerns around the lack of independence in the appointment of the Rica judge by requiring consultation with the Chief Justice, this measure is insufficient. To ensure the robustness of the review process, it would have been preferable to include automatic review mechanisms once surveillance subjects have been notified. Additionally, given the significant workload of several hundred cases a year, consideration should be given to establishing a panel of judges for decision-making and review stages.

Protecting the Interests of Surveillance Subjects

The introduction of a review judge may be an attempt to address the problem of decisions being made based on one-sided secret evidence. However, this does not adequately address the issue. Instead, the proposed amendment bill could incorporate the position of a public advocate to defend the interests of surveillance subjects. This public advocate, granted security clearance, would be able to access secret evidence and interrogate the case beyond what is provided in the application, ensuring a more balanced and transparent decision-making process.

The Need for Safeguards for Lawyers and Journalists

The justice ministry’s exclusion of an important safeguard from the interim measure provided by the Constitutional Court’s judgment is concerning. The interim measure required the judge to grant a warrant only if necessary, ensuring that it is used as an investigative method of last resort. The amendment bill falls short in providing this critical safeguard.

Addressing Metadata Surveillance

One major shortcoming of the proposed amendment bill is its silence on the issue of metadata surveillance. Rica allows the state to use procedures outside of the act to access metadata, leading to lower privacy standards and potential abuse. To address this concern, Rica should be the sole governing law for accessing metadata, with the inclusion of procedures that involve ordinary courts granting warrants. This would ensure speedy decision-making while still maintaining privacy standards.

A Missed Opportunity and the Way Forward

The justice ministry’s failure to thoroughly review Rica, section 205, and the entire surveillance setup reflects a concerning lack of leadership and accountability. The concerns raised by citizens and civil society organizations about unaccountable state spying have not been adequately addressed. The proposed amendment bill falls short in providing the necessary safeguards for privacy and oversight.

To strike a balance between privacy protection, combating crime, and promoting national security, South Africa must prioritize comprehensive and meaningful reforms to its surveillance laws. Transparency, accountability, and the involvement of independent oversight mechanisms are crucial in safeguarding citizens’ privacy rights. It is imperative for parliament to address the shortcomings highlighted by the Constitutional Court and ensure that the new law adequately protects the privacy of South African citizens.

References:

Jane Duncan. (2023, October 9). South Africa’s surveillance law is changing, but citizens’ privacy is still at risk. Retrieved from https://techxplore.com/news/2023-10-south-africa-surveillance-law-citizens.html