A piece of South African law, that reminds one of the apartheid era days of security agents steaming-open letters or tapping phones and of the bulk surveillance that Edward Snowden revealed, has been declared invalid. The invalidity has however been suspended for two years to allow South Africa’s parliament to remedy all defects.
The Regulation of Interception of Communications and Provision of Communication Related Information Act (“RICA”), which the South African state had used to spy on journalists and possibly their lawyers and to conduct mass surveillance of its citizens, was yesterday suspended by the High Court of South Africa.
The amaBhungane Centre for Investigative Journalism and journalist, Sam Sole (“the Applicants”) brought a court application to declare RICA constitutionally invalid. They based their claims of unconstitutionality on 4 points:
· The absence in RICA of a right of notice to a person, who has been surveilled, of such surveillance.
· The alleged shortcomings in RICA of the model of safeguards in respect of the selection of a designated judge to authorise surveillance operations and the procedures employed to facilitate the role of the designated judge.
· The alleged shortcomings in the RICA model of safeguards concerning custody and management of information gathered by surveillance.
· The alleged shortcomings in RICA of the model of safeguards to effectively:
o preserve legal privilege in respect of lawyers and their clients, and,
o preserve the confidentiality of the sources of investigative journalists.
In order to combat these shortcomings, the applicants essentially argued for a new “system where the visible independence of the designated judge is enhanced by an independent selection of the incumbent by the Judicial Service Commission, and the work process of the designated judge is assisted by a public advocate to introduce an adversarial element into the process of evaluation.”
They also argued that “because, implicitly, even these measures cannot eliminate the risk of abuse, a right of notice after the cessation of the interception to facilitate at least a damages claim for improper violation of privacy.”
In addition, they asked that the storage period for data be reduced from 3 years to 6 months; that the manner in which data is managed be legislated and that the peculiar confidentiality needs of lawyers and journalists be addressed e.g. by having an intermediary filter what is subject to legal privilege or an investigative journalist’s confidential source.
The right to notice
The Judge considered whether the right of a party, who was subject to surveillance, to be notified, after surveillance is denied or terminated, is justified. He considered practices in other jurisdictions such as Germany, Japan, the United States and Canada, and found that they all provide for some form of after-the-fact notice to the person that was under surveillance.
The Judge took the view that a person under surveillance should be notified 90 days after the expiry of the interception directive. Whilst he agreed that extensions to an interception directive are necessary, he disagreed with the applicants that such extensions should not exceed 180 days.
He took the view that that interception directives should not exceed 180 days at a time, and that after a total period of 3 years of surveillance, any further extensions should be reviewed by a panel of judges.
The designated judge
In applying to intercept certain communications, a person wanting to do so would need to convince a judge – referred to as a designated judge – that such a request was justified.
The Applicants argued that the manner in which the designated judge was appointed, was flawed. They proposed that the Judicial Services Commission appoint the designated judge and that it not be one judge, but a panel of designated judges. Whilst the Judge accepted that the Judicial Services Commission proposal was reasonable, he thought it required more reflection. He therefore proposed that, until RICA is amended, the Chief Justice nominate the designated judge and the Minister of Justice then appoints her or him.
The Applicants also argued for a public advocate to be appointed, who would provide arguments in favour of the proposed subject of surveillance. The Judge considered the arguments, but was not convinced that a public advocate would be of much assistance. He instead agreed that there were insufficient safeguards in the interception directive process and declared this to be the case. He effectively referred the issues back to Parliament for remedying.
The archiving of data
As RICA stands, telecommunications providers are required to retain all communication related data for three years. The Applicants argued that storing data for 3 years is too long. The Judge took into account a number of factors, but eventually disagreed with the Applicants, ruling that three years is not unreasonable.
The Applicants also argued that RICA’s management, usage and accessibility controls and integrity-oversight model was inadequate. For example, they alleged inadequacies in where intercepted information was stored and who may have access to it. The Judge agreed with the Applicants, that RICA did not prescribe sufficient procedures to follow when state officials are examining, copying, sharing, sorting through, using, destroying and/or storing the data obtained from interceptions.
He gave Parliament two years to remedy this.
Legal privilege and journalists’ confidential sources
The Applicants argued that RICA is inconsistent with the Constitution and therefore invalid, as far as it relates to journalists or lawyers. This flows from the foundational proposition “that both .lawyers and journalists have obligations to preserve the confidential communications from, respectively, clients or from secret sources.”
With regard to lawyers, the Judge debated whether there should be a statutory obligation on someone applying for an interception directive to disclose to a designated judge whether the person being surveilled is a lawyer. Ultimately, the Judge decided that RICA’s provisions contain sufficient conditions and restrictions requiring disclosure of relevant information.
With regard to journalists, the Judge debated why, given the important role they play in society, especially the role in rooting out corruption, we do not give their methods of collecting information some sort of privilege. The Judge concluded that in his view “the absence of express provisions enjoining the designated judge to examine the justification of spying on a journalist is evidence of a failure to align RICA with section 16(1) rights. The absence renders RICA in that respect, unconstitutional.”
Paragraph 131 of the judgment is outstanding in the way it describes the role of journalists in society, and is a must read.
He agreed with the Applicants’ request that, while RICA is being reviewed, any applications for an interception order must disclose whether the subject is a journalist or lawyer; the designated judge must only grant the order if she/he is satisfied that the order is necessary and appropriate, despite the fact that the subject is a journalist or lawyer; and if the designated judge grants the order, she/he may include further conditions that she/he considers necessary.
This is essentially surveillance “done through the tapping and recording of transnational signals, including, in some cases, undersea fibre optic cables.” As is evident from the description, this method can clearly collect huge amounts of information.
The Judge analysed relevant South Africa laws, including the National Strateguc Intelligence Act (NSIA) and did not find any that permitted national intelligence structures, such as the State Security Agency, to conduct bulk surveillance. The then Director-General of Intelligence argued that bulk surveillance is common practice in many countries. The Judge took the following view:
“This is, indeed, a notorious fact. However, even were it be to assumed, for the purpose of this analysis, that bulk interceptions per se, or subject to certain conditions, is a good idea, or even a practice that any sovereign State cannot do without, despite its distaste for the practice, the least that can be required is a law that says intelligibly that the State can do so. The NSIA does not do so. Our Law demands such clarity, especially when the claimed power is so demonstrably at odds with the Constitutional norm that guarantees privacy. If there was a law it could be tested in terms of section 36 and 39 of the Constitution.”
Based on the fact that there is no South African law that “has been demonstrated to trespass onto the privacy rights or the freedom of expression rights of anyone, including South Africans, whose communications criss-cross the world by means of bulk interception”, the Judge ruled that:
"The bulk surveillance activities and foreign signals interception undertaken by the National Communications Centre are unlawful and invalid."
With the Judge’s orders, the media freedom and privacy rights of South Africans have been given unequivocally asserted and are undoubtedly on par with and if not, in the case of bulk surveillance, better than other democracies across the world.
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