Thu. Oct 17th, 2019

All eyes on RICA: AmaBhungane want transparency in surveillance law

amabhungane rica surveillance lawAmaBhungane argue that the all-seeing eye needs some form of accountability.

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Since the case was lodged by the AmaBhungane Centre for Investigative Journalism years ago (the applicants in the court case), the Pretoria High Court finally opened its doors for the matter on the threat of the Regulation of Interception of Communications and Provision of Interception of Communication-Related Information Act (RICA) to be heard, on Tuesday.

The long wait did nothing to diminish the spirits of those at the forefront of this constitutional challenge.

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People who come across this case that is related to RICA will ask themselves what the big fuss is about.

After all, RICA is just an administrative process that registers a South African mobile network number to its unique owner, right? Surprisingly, there are two answers to this question: yes and no.

Why is RICA being challenged in court?

While the aforementioned usage of the regulatory communications system is accepted, it can also be abused by higher powers in an invasive manner.

Take, for example, the case against AmaBhungange vs the Ministry of Justice and Correctional Services and Others.

The founder of AmaBhungane, Sam Sole, in 2014, was spied on by the government without his knowledge.

The unveiling of the notorious spy tapes, which sought to link former president Jacob Zuma to an illegal arms deal case that has dragged on for more than a decade, featured transcripts of a telephonic conversation Sole had had with Billy Downer, a former NPA chief prosecutor.

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Sole, in his admission, had not been aware of the fact that his communication devices were tapped by the government.

Neither did he have any ability to render the contents of what was recorded inadmissible retrospectively because nowhere in the Act does it state that subjects whose communication devices have been intercepted have some level of authority over the usage of that data after it has been collected.

This, for AmaBhungane and other supporters of the court bid, like the Centre for Constitutional Rights, could be a very dangerous tool if placed in the wrong hands.

“An important point the applicants raise in the constitutional challenge is the fact that the United Nations Human Rights Committee (UNHRC) in 2016 already raised various serious concerns about South Africa’s surveillance regime.

“The UN report’s concerns include the lack of proper safeguards, the low threshold for surveillance and the failure to provide remedies for unlawful interference with the right to privacy. This constitutional challenge to RICA, therefore, has long been in the making.” – Centre for Constitutional Rights

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What is the premise of AmaBhungane’s argument?

While the applicants agree that the ability of the government to tap into communication devices to prevent catastrophes before they happen is invaluable, they argue that there need to be more stringent safeguards to ensure the protection of journalists, politicians and private citizens.

Currently, the South African Police Service (Saps) and other agencies from the Ministry of Justice and Correctional Services, as well as the Ministry of State Security, have full control over access to our communication devices.

AmaBhungane argues that there is a serious problem with the fact that:

  • only a retired judge can preside over the submission of an application to intercept a communication stream;
  • there is no representation for the targeted subject whose communication devices, with personal data, are threatened; and
  • there is no recourse in place to allow notification to the targeted subject of the interception after data has been extracted from the device.

In essence, the applicants want to challenge the notification aspect of this process.

They argue that if a warrant serves as a notice that authorities have been given liberties to plough through your personal belongings, there is no reason why the same principle can’t be applied to surveillance laws.

Court proceedings are expected to carry on throughout the week. So far, AmaBhungane has made submissions to have the RICA laws declared as unconstitutional and suspended for a period of two years to allow for adjudication on how surveillance ought to work in South Africa.

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