The latest Constitutional Court (ConCourt) ruling on the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA) will play a crucial role in preventing arbitrary Internet surveillance of bulk “spying powers” from operating unconstitutionally.
This is according to advocacy group Right2Know Campaign (R2K), which has applauded the judgement handed down by the ConCourt yesterday, declaring RICA 70 of 2002 unconstitutional, in so far as it fails to provide “adequate” safeguards to protect the right to privacy and render it lawful.
The judgement comes after the AmaBhungane Centre for Investigative Journalism and Stephen Sole – a journalist who had been the subject of state surveillance – approached the High Court on the basis of a number of constitutional challenges to RICA.
The High Court found RICA makes no provision for a subject of Internet surveillance ever to be notified that she or he has been subjected to surveillance, and that it lacks any form of adversarial process or “other mechanism” to ensure the intended subject of surveillance is protected in the ex parte application process.
Furthermore, RICA also failed to provide sufficient safeguards for the appointment of a designated judge to ensure the correct investigative procedures have been applied – creating space for executive interference, notes the court papers.
R2K, which collaborated with amaBhungane in its High Court appeal, told ITWeb that at the heart of this matter is RICA failing to protect the right to privacy – an important constitutional right, which embraces the citizen’s right to be free from intrusions and interference by “bulk surveillance spooks” who illegally interfere in one’s personal life.
“This ruling will go a long way in protecting citizens and ensuring their right to privacy is not arbitrarily abused by the spooks and bulk surveillance powers, housed in the National Communication Centre,” says Thami Nkosi, advocacy organiser at R2K.
“This will prevent the unfair targeting of journalists, lawyers, activists, whistle-blowers and others, as these usually deal with sensitive information as they go about doing their work to demand transparency and accountability from government and other entities.”
In its court documents, the ConCourt states intrusions into individuals’ privacy may occur in many and varied ways. In this case, it is called upon to consider intrusions in the context of the surveillance of individuals, including the interception of their private communications.
“Section 14(d) of the Constitution entrenches the right of everyone ‘not to have the privacy of their communications infringed’, which is a component of the right to privacy which has been infringed by RICA.”
Conditional authority to fight crime
RICA, the South African law that regulates the interception of communications and associated processes, such as applications for and authorisation of interception of communications, is also aimed at preventing criminals from using mobile and computer devices for illegal activities.
R2K says the new ruling would not be carte blanche for criminals to conduct illegal activities, but rather, it shines the light on the lack of oversight on the surveillance power’s scrupulous conduct and lack of regulation, which ensures correct checks and balances are followed to ensure fair and legal surveillance.
As an organisation admitted as Amicus Curiae (friends of the court), R2K says it had previously made several submissions to the court, to prove the many ways in which spooks had been spying on whistle-blowers. In addition, the organisation had registered a number of cases with the Inspector General of Intelligence in this regard.
“We have seen, and it has been in the public discourse, how the State Security Agency has, for instance, infiltrated movements like ours and other formations.
“This clearly is a violation of citizens’ right to privacy and not intended to stop criminals. We know there is evidence of adverse use of state resources by spooks to rather politicise and target sections of society that fight for citizens' rights to access information, demand accountability and transparency, as well as advocate for active citizen participation in decision-making,” states Nkosi.
The ConCourt has given Parliament three years to amend the Act.
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