Data collection: ConCourt judgment on surveillance has far-reaching, global implications

In February 2021, the Constitutional Court handed down a judgment that South Africa’s foreign signals intelligence capability, the National Communications Centre (NCC), was operating unlawfully as it was not established in terms of any law. The NCC is housed in the country’s civilian intelligence agency, the State Security Agency (SSA). 

The implication of this ruling – which also found other aspects of South Africa’s main communications surveillance law, Rica, unconstitutional – was that the SSA was expected to shut the NCC down with immediate effect. The SSA has since confirmed that it has done just that. The NCC has been hugely controversial over the years for having been abused to spy on South Africans, despite its foreign intelligence collection mandate. 

https://www.dailymaverick.co.za/article/2021-02-25-state-security-agency-confirms-suspension-of-bulk-surveillance-following-amabhungane-concourt-victory/

The judgment has regional and global implications beyond the South African environment. Rica has been used as a model law in the rest of Africa, so if the model is changing, then other countries will need to follow suit. 

Southern Africa faces few terrorism threats, with the exception of the escalating insurgency in the Cabo Delgado province of Mozambique. Yet, the region faces a major intelligence oversight problem. Most countries in the region lack basic democratic controls on their intelligence agencies, which are generally tightly controlled by their executives. Many agencies are involved heavily in political policing of civil society and protest movements. There is scant evidence that communication interceptions are bringing down crime. The judgment will make it more difficult to continue these abuses under a cloak of secrecy. 

On the international stage, the more privacy protections become generalised across the world, the more difficult it will be for governments to practise untargeted surveillance willy-nilly. Democratic controls will become the rule rather than the exception. As Privacy International has noted, South Africa is one of few countries in the world that has acknowledged publicly that it practises bulk interception. The more countries are made to avow the use of these powers, the more difficult it will be for other countries to hide invasive and poorly regulated intelligence practices in the shadows.

Judicial deference to the executive on national security matters has been a worldwide problem. The more apex courts there are that refuse to defer to intelligence agencies, and insist on holding them to account, the more widely practiced robust judicial oversight will become. But, most importantly, what the judgment represents, is an opportunity to have a fresh debate about whether democracies should be permitting their intelligence agencies to conduct bulk surveillance at all. 

The SSA argued in its answering affidavit that bulk signals intelligence (Sigint) surveillance was an internationally accepted method of monitoring transnational signals for national security threats. The conventional logic underpinning Sigint has been that intelligence agencies typically have fewer investigatory powers outside their own country as they do inside it; consequently, more invasive investigatory methods are justified to level the playing field. 

However, if the SSA cannot distinguish between foreign and local signals – an argument that will no doubt apply to other Sigint agencies too – then this argument cannot be sustained. There is no doubt that intelligence agencies find these powers useful. But a distinction should be drawn between the powers that agencies find useful and the powers that they should be given in a democracy. Conducting bulk surveillance on an untargeted basis cannot be justified in a democracy as the power is simply too invasive. 

Furthermore, the reality of how the major surveillance powers – led by the Five Eyes alliance – use these powers means that it is in South Africa’s interests, and in fact in the interests of Global South countries as a whole, to campaign against the continued use of these powers. 

The Five Eyes alliance would have us believe that these powers are necessary to fight the global scourge of terrorism. As high-minded as this objective sounds, though, increasingly global intelligence is not just about responding to national security threats, but advancing national interests. In other words, intelligence has become an instrument of nationalist populism. 

The Snowden disclosures revealed the grubby and deeply political realities of bulk Sigint surveillance. They showed how the major surveillance powers spied on African leaders and businesspeople in order to gain competitive geostrategic advantages in trade negotiations and business dealings.

In contrast to their stated aims of conducting Sigint operations to detect terrorism, serious crime and other threats to global stability, the UK’s Government Communications Headquarters (GCHQ) spied on dozens of politicians, diplomats, military and intelligence chiefs, members of the opposition and leading business figures across Africa, with particular attention being paid to heads of state. And while these individuals are of course traditionally who spy agencies spy on, on national security grounds, these figures are not the ones the agencies sell themselves to the public on. 

GCHQ spied on South African officials to establish their negotiating positions in relation to the G20 summit in 2009, when its possible alliance choices in the wake of the global economic crisis were the source of some speculation. GCHQ also spied on the employees of South African multinational mobile phone company MTN, especially roaming managers who travelled extensively to negotiate roaming agreements with other countries, and also monitored oil producing countries such as Angola and Nigeria.

It is important to note that in the case of these MTN employees, they are presumably law-abiding citizens who have done nothing wrong, are not in and of themselves a threat to national security, but by virtue of their occupation become the target of espionage, which significantly interferes with their privacy. In the case of Angola – then the largest oil producer in Africa – GCHQ spied on the country’s presidential palace. GCHQ’s interests also extended to businesspeople in Democratic Republic of Congo and Angola. 

So, in other words, the Snowden revelations showed how Sigint surveillance extended far beyond fighting transnational crime and terrorism, and into maintaining neo-imperialist and neo-colonial relationships. These spying operations amounted to espionage, giving the British government and its Five Eyes partners a competitive advantage over other countries in the race for Africa’s resources. 

Now clearly, not having bulk surveillance powers would place South Africa at a considerable disadvantage in this murky world of transnational spying. Five Eyes countries can continue to spy on South African trade negotiators, politicians and businesspeople, while South Africa is unable to return the “favour”. 

With the Constitutional Court judgment, Global South countries have reached a fork in the road on intelligence matters. Not many of these countries can afford to use bulk Sigint powers, given the expense and analytical capabilities needed. One alternative is for these countries to find common cause with one another and aspire to similar economies of scale to the Five Eyes. 

The most obvious vehicle for establishing an alternative Five Eyes would be the BRICS alliance of countries. In any event, more southern African countries are pivoting to China and Russia on intelligence matters, not only in terms of surveillance capabilities, but intelligence doctrine, too. 

However, with the authoritarian nationalist governments in power in most BRICS countries, building an alternative Five Eyes would be a very bad idea, even if it was possible politically (a big if). It may be strategic to argue that the major imperialist powers have these powers, so if you can’t beat them, then join them, but it is not a principled argument. 

Sigint is a weapon, having come out of a military environment. Establishing competing bulk interception blocs will move the world closer to a splintered and weaponised internet. Fewer people than ever will be able to communicate freely, openly and securely, especially in the Global South. 

It is simply not in the true interests of the broader mass of South Africans, Africans, or the Global South as a whole, to continue supporting the use of bulk surveillance powers that reinforce their peripheral role in the world. This is a fight that Global South countries such as South Africa should not aspire to win on terms that the intelligence community sets. It’s an arms race to the bottom in which these countries will continue to be outgunned. The solution is not to try to buy bigger and better guns, but to champion disarmament. DM

Jane Duncan is a professor in the Department of Journalism, Film and Television at the University of Johannesburg. She is author of Stopping the Spies: Constructing and Resisting the Surveillance State in South Africa. This article was published first on About.intel, a European blog on surveillance and democratic intelligence oversight, at https://aboutintel.eu/political-economy-spying/