Something that has never probably happened anywhere else in the world to date (I stand to be corrected), happened in South Africa on the morning of 16 September 2019. Specifically, Judge Roland Sutherland ruled that the South African government’s “practice of bulk interception of international communications is unlawful.”

In an article on iAfrikan, I detailed how, as part of the ongoing court case, South Africa’s State Security Agency was conducting indiscriminate mass surveillance on citizens by tapping, among others, undersea fiber cables.

The South Gauteng High Court in Johannesburg witnessed history on 16 September 2019 as Judge Roland Sutherland ruled that indiscriminate mass surveillance by the South African state is unlawful.

To illustrate just how important the judgment by Judge Sutherland is, you need to understand that even in the democratic USA after Edward Snowden’s revelations, to my knowledge, the American authorities were only condemned in the court of public opinion for indiscriminate mass surveillance on the country’s citizens, but never in court.

Seriously, the judgement is a big deal. Even Snowden himself exclaimed as much in a tweet.

To highlight, and to make one last point, on how big the judgment is. Just as I was penning this newsletter, the USA’s Justice Department released a statement that it had filed a civil lawsuit against Snowden. This has to do with Snowden’s book, Permanent Record, which has just been released and published today.

They say it is because, by publishing the book, he violated “the non-disclosure agreements he signed with both CIA and NSA.”

“The lawsuit alleges that Snowden published his book without submitting it to the agencies for pre-publication review, in violation of his express obligations under the agreements he signed. Additionally, the lawsuit alleges that Snowden has given public speeches on intelligence-related matters, also in violation of his non-disclosure agreements.” - USA Justice Department

Permanent Record by Edward Snowden

The book the CIA and NSA don’t want you to read. In 2013, twenty-nine-year-old Edward Snowden shocked the world when he broke with the American intelligence establishment and revealed that the United States government was secretly pursuing the means to collect every single phone call, text message, and email. Six years later, Snowden reveals for the very first time how he helped to build this system and why he was moved to expose it.

Contrast this with South Africa where not only was a case allowed to be heard and publicly recorded regarding the activities of the country’s State Security Agency, but also the Judge confidently ruled against the state and its bulk interception of communications.

Having said that, as Professor Jane Duncan put it when I spoke to her on Monday after the judgement was handed down, it’s expected the state will appeal the judgement up to the constitutional court. However, given the reasoning of Judge Sutherland and the indiscriminate nature of the mass surveillance by South African government agencies, Professor Duncan and others involved believe the state will lose every appeal, even at the constitutional court.

This is partly because, in handing down judgment, Judge Sutherland noted how inconsistent with South Africa’s constitution the mass surveillance was. This is a big win for privacy and media freedom in South Africa. Here’s to hoping it sets a precedent for the rest of the world to follow.

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