\u201cIs your phone tapped?\u201d people often ask me. That\u2019s because they\u2019re aware I am involved, through amaBhungane, in sensitive investigations of state and corporate malfeasance.<\/p>\n
\u201cI don\u2019t know, but I assume it is,\u201d is always my answer. I\u2019m not certain I am being monitored, but I have a pretty good hunch because, unlike most surveillance targets, I know that my phone calls were recorded at one time.<\/p>\n
Investigative journalism takes time and money. Help us do more. Be an amaB Supporter<\/a>.<\/p>\n How do I know? Jacob Zuma told me, through his lawyer Michael Hulley.<\/p>\n It happened like this.<\/p>\n In 2009, when rumours of the so-called \u201cSpy Tapes\u201d started to surface in the midst of the campaign to have corruption charges against Zuma dropped, some of his acolytes boasted to me about how I featured on various recordings they had access to.<\/p>\n Of course, when acting National Director of Public Prosecutions Mokotedi Mpshe announced his decision to revoke the prosecution of Zuma, he cited only a tiny sub-set of the full recordings, which had been derived from official surveillance carried out by both the police and national intelligence organs.<\/p>\n Those intercepts quoted by Mpshe featured then-head of the Scorpions Leonard McCarthy, not little me, so the proof that I was tapped remained frustratingly out of reach.<\/p>\n Not even the Democratic Alliance\u2019s years-long efforts to gain access to the Spy Tapes delivered the goods for me, but their bid to have charges against Zuma reinstated finally shook something loose.<\/p>\n Hulley, demonstrating the Zuma camp\u2019s superior access to the intercepted material, attached a transcript of conversations between advocate Billy Downer and myself to his court papers opposing the DA\u2019s effort to have Mpshe\u2019s decision overruled.<\/p>\n The conversations dated back to 2008 when Downer was the senior advocate leading the National Prosecuting Authority\u2019s team investigating Zuma on charges relating to the arms deal.<\/p>\n Hulley unsuccessfully tried to make something of the rather tame exchanges to bolster Zuma\u2019s argument that the prosecution was tainted.<\/p>\n But he provided me \u2013 and amaBhungane \u2013 with the proof we needed to start probing the legal architecture and oversight of the state\u2019s surveillance regime.<\/p>\n It was the catalyst for the groundbreaking constitutional challenge we are mounting, beginning this week, to the way in which the state spies on us \u2013 and also on you.<\/p>\n The first thing to note is that this is not about me \u2013 and has never been (though it is galling think that the state has had this intimate access to both your professional and private life).<\/p>\n The core issue is that legislation governing legal interception, the Regulation of Interception of Communications and Provision of Communication-Related Information Act \u2013 known more conveniently as Rica \u2013 was conceived when most people thought of monitoring communications as being a rare right granted by a judge to officer Koekemoer or agent Sithole to tape and listen in on the conversations of criminals and terrorists.<\/p>\n Even when the law was passed in 2002 this conception was outdated \u2013 and now it is light years away from the reality of modern signals intelligence.<\/p>\n The law\u2019s safeguards, inadequate then, are dangerously weak now.<\/p>\n That\u2019s because the scale and reach of technology has grown dramatically. Increasingly we live our lives online and that reality has ushered in a global information ecosystem where both surveillance and propaganda have been digitally weaponised.<\/p>\n The disclosures of US whistleblower Edward Snowden have revealed what is now technically possible.<\/p>\n In the words of Glenn Greenwald, the journalist to whom Snowden leaked his material, Snowden has demonstrated that \u201cthe US and its closest allies are trying to build a surveillance system that has as its primary objective the elimination of privacy globally, by which I mean that everyone\u2019s communications electronically will be collected, stored, analysed and monitored\u201d.<\/p>\n The scale of the US collection programme is simply staggering. So much data is collected that the raw contents can\u2019t be kept very long, though selections of interest are. Metadata \u2013 typically from cellphones \u2013 is the record of each call. That means the date and time and duration of the call and the number to which it was made, as well as the location of the cellphone at the time.<\/p>\n Cellphones have been correctly dubbed \u201cthe spy in your pocket\u201d \u2013 they are the most ubiquitous tool for human surveillance ever conceived.<\/p>\n As well as call-logs, cellphones continuously deliver location data to the network, telling someone with access to that information where the phone is to within a few meters.<\/p>\n Combine that information with logs of an individual\u2019s total online activity \u2013 the websites he or she visits, their electronic payments of whatever kind, their email contacts \u2013 and you have a detailed picture of someone\u2019s life.<\/p>\n And not just someone\u2019s life: the surveillance of whole populations is now within reach.<\/p>\n As we have known since the days of George Orwell\u2019s 1984<\/em>, even the possibility or suspicion of being monitored can have a chilling effect on free speech and association.<\/p>\n The Americans may be far advanced, but lesser states will follow.<\/p>\n When the government of Muammar Gaddafi fell, the rebels discovered equipment for capturing, storing and searching all calls going into or out of the country.<\/p>\n The equipment was made by a South African company called Vastech.<\/p>\n Our own legislation requires a warrant issued by a judge to allow legal interception inside the country, but the situation regarding metadata is less clear.<\/p>\n Cellphone call records, for instance, can fairly easily be obtained by a police officer on application to a local magistrate in the course of a criminal investigation.<\/p>\n In any case, the evidence suggests that the legal requirements are quite easily sidestepped, not only by state players, but also by private entities who use commercially available surveillance tools or bribe communications company employees who have access to the data.<\/p>\n There are a number of cases on record where the police have simply substituted the telephone numbers of persons of interest \u2013 such as journalists \u2013 and hidden them among the numbers for genuine targets. The judge or magistrate is none the wiser.<\/p>\n And our own State Security Agency is not subject to any restrictions on communication that has a leg outside the country.<\/p>\n That means all cross-border communication, but it also means Gmail, Facebook, Skype, Whatsapp and the like \u2013 because, even though both parties may be inside South Africa, communication is routed through external computer networks and servers.<\/p>\n For journalists, the ease with which surveillance can be used to reveal sources represents a special threat to the flow of confidential information \u2013 which is the life-blood of accountability journalism.<\/p>\n Already it is virtually standard practice for both sources and journalists in South Africa to insist on removing their cellphone batteries before a meeting, because of the ease with which phones can be hacked and turned into listening devices.<\/p>\n Propaganda is the other side of the surveillance coin.<\/p>\n Messages, including \u201cfake news\u201d, can now be tailored and directed to exploit what surveillance reveals \u2013 also on a mass scale.<\/p>\n Recent events, such as the election of Donald Trump, have shown us that this technology can now be used to achieve political outcomes \u2013 the technology makes the manipulation of populations possible in ways that undermine our basic understanding of the authenticity and authority of the popular will, of democracy itself.<\/p>\n Against this backdrop amaBhungane has launched a legal challenge to Rica, to try and strengthen safeguards against the abuse of this powerful tool.<\/p>\n We are going to court \u2013 starting with the High Court in Pretoria \u2013 in order to strengthen the protection of citizens \u2013 and journalists \u2013 against the potential abuse of this necessary but intrusive legislation.<\/p>\n Our complaints fall into two categories: firstly, the areas where Rica regulates surveillance, but does so in an inadequate manner; and, secondly, where it fails to regulate certain monitoring activities at all.<\/p>\n Where Rica does regulate, there are five main constitutional flaws:<\/p>\n It is like a search warrant that is executed at your home while you are away, but you are never informed and everything is put back very carefully so you never know it happened. Because of this, we argue, the target of an interception order is never granted the opportunity to test whether the intrusion was lawfully approved \u2013 and on the basis of a reasonable suspicion.<\/p>\n Obviously it would defeat the purpose of interception if the target knew he or she is being monitored, but we argue that once the need for secrecy has passed, targets of interception should be informed and given the right to challenge the order in retrospect.<\/p>\n Scooping up someone\u2019s communications is an intimate violation of their privacy, but there are simply no legal safeguards concerning what happens with the data, who may have access to it and what they can do with it.<\/p>\n Where the interception is found to be irrelevant or of no probative value, there is no certifiable procedure for the data to be destroyed.<\/p>\n But there is a second category of problems with Rica, in that it does not regulate certain kinds of interception at all.<\/p>\n The scanning will flag and save communication that contains certain key-words or numbers or other kinds of electronic signatures that are of interest to the intelligence community. This material is then available for further scrutiny.<\/p>\n According to the practice of the intelligence community, this communication is monitored without any warrant. Where any part of the communication occurs via a system that is outside the borders of the Republic, that is defined as foreign and treated as \u201cfair game\u201d for surveillance.<\/p>\n Nowadays communications infrastructure has globalised to the point where it hardly makes sense to distinguish between local and foreign. This directly affects ordinary people not only where one party to a communication is located in South Africa and one outside, but also where both are located in South Africa and using a foreign network, such as Gmail.<\/p>\n Finally, it is important to emphasise that we are not arguing that the interception of communications is in all circumstances unconstitutional and impermissible.<\/p>\n Investigative journalism takes time and money. Help us do more. Be an amaB Supporter<\/a>.<\/p>\n It remains a vital intelligence-gathering and policing tool.<\/p>\n But we say that because the interception and surveillance inevitably limit fundamental rights, such as privacy, it is essential that these procedures be subject to a series of stringent checks and balances.<\/p>\n The founding papers were served on the ministers of justice, police, state security and communications, as well as other interested parties, this week.<\/p>\n
\nBut what is called metadata is already stored for five years or more.<\/p>\nAmaBhungane launches constitutional challenge<\/h5>\n
Weak Regulation<\/h5>\n
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No Regulation<\/h5>\n
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