{"id":10044,"date":"2019-09-18T09:19:59","date_gmt":"2019-09-18T09:19:59","guid":{"rendered":"https:\/\/amabhungane.org\/?post_type=advocacy&p=10044"},"modified":"2024-10-15T17:18:39","modified_gmt":"2024-10-15T17:18:39","slug":"analysis-inside-amabhunganes-landmark-ruling-on-surveillance","status":"publish","type":"post","link":"https:\/\/further.co.za\/amabwp\/analysis-inside-amabhunganes-landmark-ruling-on-surveillance\/","title":{"rendered":"Advocacy analysis: Inside amaBhungane\u2019s landmark ruling on surveillance"},"content":{"rendered":"

Edward Snowden said, “Wow.”<\/p>\n

Yes, this judgement is so significant that the world\u2019s most important whistle-blower and authority on state surveillance took note.<\/p>\n

Snowden was reacting to a tweet by Privacy International, a UK-based advocacy organisation that presented evidence as a \u201cfriend of the court\u201d together with local transparency activists Right2Know.<\/p>\n

@privacyint tweeted: \u201cThe rule of law prevailed today! Six years after @Snowden’s revelations, the High Court of South Africa declared that bulk interceptions practices are unlawful. The case was brought by @amaBhungane, we intervened with @r2kcampaign.\u201d<\/p>\n

AmaBhungane\u2019s application, launched in 2017, challenged the constitutionality of elements of Rica, the Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002.<\/p>\n

Rica is the law which permits the interception of communications of any person by authorised state officials subject to prescribed conditions.<\/p>\n

We argued that the protections built into the act to prevent abuses of this necessary invasion of privacy were not constitutionally up to scratch.<\/p>\n

We also challenged the practice of the intelligence services in conducting so-called \u201cbulk interception\u201d on the basis that there was no law that gave them the right to do that.<\/p>\n

Bulk surveillance is a method of monitoring transnational signals in order to screen them for certain cue words or key phrases. It also allows operators to enter target phone numbers or electronic addresses and signatures in order to monitor the electronic lives of individuals of interest.<\/p>\n

The state position was that it did not need anybody\u2019s permission to do this, despite the fact that, as the judge put it, this form of monitoring would also capture communications between two South Africans, both of whom were in South Africa, provided the signal passed through a server located outside South Africa.<\/p>\n

We\u2019re talking WhatsApp, Skype, Gmail, internet browsing, location tracking etc etc \u2013 all available at the touch of a keyboard.<\/p>\n

Because it\u2019s so easy and, unlike interceptions under Rica, doesn\u2019t require a judge\u2019s approval, our suspicion was that bulk interception is where a lot of abuse takes place \u2013 here, as is the case elsewhere, as Snowden\u2019s leaks showed.<\/p>\n

These tools are so powerful that intelligence services globally are very reluctant to place them under supervision \u2013 so Judge Roland Sutherland\u2019s determination that \u201cthe bulk surveillance activities and foreign signals interception undertaken \u2026 are unlawful and invalid\u201d is unprecedented.<\/p>\n

The State Security Agency (SSA) is now in a tight spot.<\/p>\n

As Sutherland put it: \u201cThe Answering Affidavit of [Arthur] Fraser, then the Director-General of Intelligence, says that bulk interceptions is common practice in many countries. This is, indeed, a notorious fact. However, even were it to be 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.\u201d<\/p>\n

He noted: \u201cOur Law demands such clarity, especially when the claimed power is so demonstrably at odds with the Constitutional norm that guarantees privacy.\u201d<\/p>\n

Sutherland pointed out that the National Strategic Intelligence Act, into which the state sought to shoehorn an implied enabling of bulk interception, did nothing of the sort.<\/p>\n

The judge also took an axe to the state\u2019s position on Rica.<\/p>\n

AmaBhungane argued that Rica\u2019s scheme was inherently problematic in that the subjects of surveillance were usually unaware that their privacy had been invaded.<\/p>\n

When a judge issues a physical search warrant, he understandably does so in secrecy, so as not to tip off the target. But once the raid is carried out, the target is inevitably aware and can go to court to test if there was a justifiable basis for the search.<\/p>\n

Electronic interception is an intrusive search that we generally never know about, unless we stumble upon the evidence \u2013 as happened in my case.<\/p>\n

In April 2015, it emerged that my communications had been intercepted in 2008, something we had long suspected, but could not prove.<\/p>\n

This happened when Michael Hulley \u2013 then attorney for President Jacob Zuma \u2013 attached to court papers extracts from official intercepted conversations between Advocate Billy Downer and myself.<\/p>\n

Downer was the senior advocate who led National Prosecuting Authority (NPA) team investigating various charges against President Jacob Zuma relating to the notorious \u201carms deal\u201d.<\/p>\n

In 2008 I had some confidential exchanges with Downer about the investigation. Unbeknown to us they were recorded by the intelligence services, based on a judge\u2019s authorisation under Rica.<\/p>\n

In 2015 Hulley extracted these conversations from the so-called \u201cZuma spy tapes\u201d \u2013 the interceptions, mainly of the NPA\u2019s Leonard McCarthy, that were illegally leaked to Hulley and then used to argue that the NPA\u2019s case against Zuma was tainted.<\/p>\n

Hulley tried to make a similar point about my communications with Downer, but they were innocuous.<\/p>\n

Nevertheless, we now had proof I had been officially bugged \u2013 and that fact formed the foundation and impetus to bring the much broader case to challenge aspects of Rica.<\/p>\n

The knowledge that the state has been intercepting your private and professional communications (for six months, it turned out) prompts a hard look at the protections contained in the law. We concluded they were threadbare.<\/p>\n

If you are never notified you were bugged, how do you ever vindicate your right to privacy?<\/p>\n

On what basis did the judge designated under Rica to issue secret interception warrants grant this order? What was he (it was a he) told? Was he independent \u2013 or was he effectively an adjunct to the services he is supposed to police?<\/p>\n

What happened to the six months of my life that was in the possession of the state? Was it destroyed? Was it shared? Was it kept, to be used in some other way to discredit me?<\/p>\n

What about the confidentiality of my sources as a journalist? My work put me in constant conflict with elements of government. How easy was it for them to reach for this tool to identify who journalists are talking to?<\/p>\n

The answers offered by Rica were not reassuring, so amaBhungane took them on, based on our mandate to challenge laws and practices that impede journalism.<\/p>\n

In his ruling, Sutherland supported all our areas of concern, declaring the relevant provisions of Rica unconstitutional and giving parliament two years to fix the problems.<\/p>\n