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The awful state of SA's lawful telecoms interception, Part One

The awful state of SA's lawful telecoms interception, Part One
Heidi Swart
By Heidi Swart
12 Jul 2022
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The Constitutional Court gave lawmakers three years to rewrite the legislation that regulates how the state spies on our private communications. But, with just over 18 months left to make the amendments, the recent final report from the Zondo Commission’s inquiry into State Capture has made it clear that the changes ordered by the ConCourt are not enough to stop illegal interception.

Rica. To most, it means admin — scratching around for an ID book, digging up a recent utility bill to register a sim card — just in case the state needs to find you. But for businessman Saki Macozoma, it meant harassment. For veteran investigative reporter Sam Sole, it meant exposing his sources. And for police detective Charl Kinnear, it meant death.

The Regulation of Interception of Communications and Provision of Communication-related Information Act of 2002 (Rica) should have protected these men. 

Rica outlaws the interception of telecommunications; the act makes only a few exceptions, including for certain intelligence and police investigations. 

Yet Macozoma was put under surveillance illegally; Sole’s confidential calls with a source were recorded; and Kinnear’s alleged killers reportedly tracked his phone. 

But, in February 2021, Sole took legal action to contest Rica’s constitutionality and the Constitutional Court ordered a rewrite. 

The amended act will now have to compel intelligence services and law enforcement to let you know if your communications were intercepted. 

The special judge overseeing Rica must be assured of independence. There needs to be stronger regulation of how intercepted conversations are copied, shared, stored and secured. Journalists and lawyers need better protection from spies. And finally, mass surveillance — vacuuming up everyone’s calls, messages and emails just in case there may be something of interest to the state — is now illegal. 

The court gave Parliament three years to rewrite the law.

It sounds like a blow to spy agencies. But these changes won’t stop illegal interception; those protecting Rica must also change. 

‘Unadulterated lies’


Rica’s first line of defence is the specially designated Rica judge. This is a retired judge to whom the intelligence services have to apply for an interception warrant (a.k.a a direction). 

The police’s Crime Intelligence division (CI), the State Security Agency (SSA), and the intelligence division of the South African National Defence Force all must get past the judge in order to intercept. 

Roughly speaking, to issue a direction, the judge must be satisfied that there’s no other safe, reasonable way to get the information required for the investigation. Additionally, the case must be serious enough to warrant the violation of the interception target’s privacy. Examples of circumstances warranting interception include a risk of serious bodily harm to a victim, terrorism and organised crime.

But the judge has a problem: How to establish the veracity of the intelligence services’ evidence.

As the Constitutional Court put it in its ruling: “... surveillance directions may be issued on unadulterated lies. And the designated Judge could not be any the wiser.” In September 2021, incumbent judge Bess Nkabinde underscored this problem in her annual report to Parliament, while also lamenting the apparent “unceasing unlawful interception of communication”.

Thami Nkosi, privacy activist and former programmes coordinator for advocacy group Right2Know Campaign, explains that the Rica judge’s ability to deal with suspicious applications for interception is severely limited. 

Nkosi says the Rica judge’s reports to Parliament only detail the number of applications that were made, approved and denied. There have never been specific cases described in the reports where state officials have faced repercussions for fraudulent applications. 

“The designated judge is hamstrung, and can only review applications and then approve or deny them,” says Nkosi. “There’s no legislative follow-up where the judge can say, ‘Hold on, I’m not happy with that, I think the evidence was falsified’.

“My sense is that there’s also no manpower for a legislative follow-up of suspicious applications. And there’s not been a test case where anyone has been held accountable for false applications.” 

Judge Nkabinde’s problems aren’t new. Back in 2015, then Rica judge Yvonne Mokgoro was concerned over repeated media reports of illegal interception by state forces and the “failure of applicants to provide fact-based justification for an application to the Judge”.

At the time, she had six staff. She reported a shortage of mobile phones to ensure staff could be available 24/7 to deal with the constant stream of warrant applications. The office also needed a filing system, furniture and telephones.

Oblivious


The Rica judge is not the only one incapable of verifying the veracity of applications for interception warrants.

Enter section 205 of the Criminal Procedure Act (CPA) of 1977, which lets the state subpoena a witness to give evidence in court. It is also used to obtain call-related information (metadata) from service providers.

Read in Daily Maverick: Big Brother is watching your phone call records 

Such information includes calls made, when they were made and to which numbers, Rica registration information, and location data generated when your cellphone communicates with cellular networks.

With this information, police can track a suspect and see who they talk to. 

With the analytical software available to governments today, a detailed profile of a person’s habits, movements and associations can be extracted from such data.

The problem, however, is that the Rica judge has nothing to do with issuing section 205 subpoenas for metadata. In terms of the CPA, a high court judge or magistrate must issue it. 

The result is that the metadata of thousands of customers is handed to police each year — and the Rica judge is oblivious. 

Read in Daily Maverick: Your cellphone records and the law: The legal loophole that lets state spying run rampant

This means there is no report to Parliament on the number of applications made in terms of section 205 for metadata subpoenas. As is the case with warrant applications to the Rica judge, law enforcement has abused the section 205 process to obtain call records unlawfully. 

Back in the late 1990s, when the Law Reform Commission was considering amendments to outdated interception legislation, they explicitly recommended that section 205 should not be employed to obtain call records — they were worried about potential abuse.

That recommendation had fallen by the wayside by the time Rica was finally promulgated in 2009. The result is that the vast majority of mobile phone surveillance occurs without the Rica judge’s knowledge. 

The solution, says Murray Hunter of privacy rights law firm ALT Advisory, is an expansion of the Rica judge’s office into a fully functional court. 

“It shouldn’t be one judge, not with thousands of applications each week (in the case of metadata) and hundreds of applications for interception each year (to the Rica judge). If we want this kind of oversight to be meaningful, it’s the job of more than one person,” said Hunter. 

“It should operate more like a court. You need a panel of judges. They can make decisions together or they could split the work up individually. It’s a body that you should be able to approach. If you believe that you’ve been subject to a decision of that court, you can decide to approach that court. And they can decide if they’ll admit you… but it would operate less like a completely closed box.”

Ideally, says Sam Sole, the journalist and executive director of amaBhungane, who took Rica all the way to the apex court, apart from a panel of judges considering Rica interceptions, there should also be “a public advocate with the role of questioning the basis of an interception”. 

In terms of addressing the section 205 problem, Sole is hopeful, even if it isn’t addressed explicitly in the Constitutional Court ruling. 

“The answer to that is post-surveillance notification, with reasonable postponement of notification. If you have to wait three months, six months or a year — that’s not the end of the world. As long as you do eventually find out and there are mechanisms by which you can test the bona fides of the process.”

Implementing this, says Sole, will require additional resources: “You’ll have to have some kind of infrastructure with a central register of 205 warrants for call records. If reasons for postponement of notification aren’t triggered, then they must notify you. And if they don’t, it needs to be flagged.” 

Sole reckons the absence of a Constitutional Court ruling on 205 doesn’t mean the justice department cannot deal with it now. 

“We’ll certainly strongly argue for it, even if it means they have to amend the Criminal Procedure Act. The same arguments apply.” 

A resource shortage isn’t the only way to undermine the judicial oversight of Rica. Judge Mokgoro’s office didn’t have money for furniture and a telephone back in 2015. The justice department is in charge of the judge’s budget. The justice minister also appoints the judge. The Constitutional Court ruled that this had to change. Nkosi explains why it’s crucial: 

“The ConCourt ruling states that the issue of the appointment of the Rica judge needs to be addressed. Nowhere in the act does it confer power upon the minister to appoint the judge. The legislation is vague. Parliament must now go and clarify who has the power to appoint the judge.” 

But, says Nkosi, there is still cause for concern. 

“Who is to say that a minister will appoint someone who is impartial? Or will they appoint someone to serve the interest of the minister or the interest of the state? How do we know that this won’t happen, given our history of State Capture and how government institutions have been hollowed out?

“Should appointing the judge not be the responsibility of the legislature; the responsibility of Parliament?”

Yet, even if the Rica judge’s problems were solved tomorrow, there are still two other stumbling blocks to enforcing the act. Neither was addressed by the Constitutional Court’s ruling.

Claims of secrecy


The Intelligence Oversight Act of 1994 was introduced to keep South Africa’s intelligence services in line in the new South Africa. It made provision for two separate watchdog bodies: The Joint Standing Committee on Intelligence (JSCI) and the Office of the Inspector-General of Intelligence (IGI). The former is a parliamentary oversight committee, while the latter is responsible for investigating complaints against the intelligence community. These include complaints from people who have been irregularly spied upon, be it through physical surveillance or interception.

But both of these watchdogs have failed to keep the spooks in line.

Says Sole: “A look at all the legislation is long overdue. I think there is an inbuilt deference to intelligence. We see that right up until today with the way the Joint Standing Committee on Intelligence works. We see it in the way claims of secrecy are made here, there and everywhere in relation to evidence given at the Zondo Commission into State Capture.

“The whole oversight architecture needs reform. The IGI’s performance has been shown to be unsatisfactory. Same with the standing committee on intelligence. I think that all of the intelligence bills will be up for change,” said Sole.

Indeed, the secretive nature of the JSCI makes public accountability near impossible. The committee comprises a dozen parliamentarians from various political parties. Members of the public are never allowed access to their meetings, and no minutes are released.

Reporting to them annually are SAPS’s Crime Intelligence division, the SSA, defence intelligence, the Rica judge, and the Inspector-General of Intelligence. The committee then releases an annual report about the intelligence service’s woes for public consumption. 

The report details issues like audited financial statements received by the services (which are the norm), flawed operations, staffing issues, intelligence failures (and failure to report those failures), supply chain mismanagement, dodgy procurements and failure to reach performance targets. 

Once the committee has overseen all of this, they can only make recommendations. But under the auspices of the JSCI the SSA has severely deteriorated since former president Jacob Zuma took office. 

Read in Daily Maverick: Parliament’s intelligence oversight failed to effectively raise the alarm on spooks’ malfeasance – final report

Both the Zondo Commission and the 2018 High Level Presidential Review Panel Report on the SSA have demonstrated how numerous irregularities transpired within the ranks of intelligence services despite the JSCI’s oversight. 

The Zondo Commission heard testimonies of staggering amounts of money being stolen from the State Security Agency’s secret operational funds. And the 2018 review panel found within the SSA “an almost complete disregard for, and non-compliance with, the existing controls, in some cases constituting criminality”.

Daily Maverick sent the JSCI a number of questions. It did not respond.

Tremendous power


Next problem, and still with watchdogs: The Inspector-General of Intelligence (IGI). The IGI must be selected by the JSCI and approved for appointment by a parliamentary majority before the president does the final honours. If you think your phone is illegally bugged, this is your go-to person. 

But the reason Rica ended up in the Constitutional Court is tightly linked to the IGI’s inertia. 

In 2009 Sole approached the IGI when he suspected his phone was bugged. The IGI wrote back, saying neither the National Intelligence Agency (today the SSA domestic branch) nor Crime Intelligence did anything wrong. 

What’s more, the IGI said, they couldn’t give Sole further information because Rica prohibited it. 

It was only in 2015 that Sole got some answers when it emerged during a court case (in which Sole wasn’t a party to litigation) that his phone conversations with prosecutor Billy Downer had, in fact, been intercepted in 2008. 

Again, Sole couldn’t get clarity about the legality of the phone tapping. The ultimate result was a protracted legal battle culminating in the Constitutional Court victory for Sole and his investigative journalism team, amaBhungane. 

However, intelligence services still wield tremendous power over the IGI. 

The IGI’s budget is controlled by the SSA. The SSA is also responsible for vetting state employees who deal with matters of national security. Without this security clearance, the Inspector-General literally can’t work. 

That’s exactly what happened to the last IGI, Setlhomamaru Dintwe, in early 2018 when he was investigating then SSA boss Arthur Fraser. Fraser withdrew Dintwe’s security clearance, halting the investigation. 

Read in Daily Maverick: Spy watchdog Dintwe spells out how Bongo and Fraser tried to derail his SSA investigations and weaken the IGI office

In April that year, Fraser had been moved to Correctional Services (although not as an inmate), and the IGI had his security clearance reinstated. SSA spokesperson Mava Scott told Daily Maverick that the issue of the IGI’s “reliance on the SSA for its budget” was “being addressed within the context of the implementation of the recommendations made by the High Level Review Panel on the State Security Agency of 2018”.

Spokesperson for the IGI, advocate Jay Govender, said that the office was unable to comment while the position of IGI is vacant. Dintwe’s term ended in March and the JSCI is still in the hiring process. 

In June, the ANC’s preferred candidate, Rev Frank Chikane, failed to pass muster in Parliament.

Read in Daily Maverick: House fails (predictably) to recommend Frank Chikane as new constitutional intelligence oversight boss 

Without the IGI and the JSCI able to do their jobs, it’s impossible for the public to know if the intelligence services have reformed when it comes to illegal interception. 

The good news: The justice department can fix all of this, as Hunter explains: “The ConCourt’s instructions to Parliament are the minimum. But Parliament can, irrespective of the court’s instructions, meet TODAY and pass an amendment to Rica — or draft a completely new law. 

“From our point of view as citizens, we need to know that Parliament is going to give us all the protections from abuses that we need.”

We sent the Department of Justice and Constitutional Development a detailed and lengthy request for comment to find out if their amendments to Rica would go beyond the Constitutional Court’s order and address issues faced by the Rica judge, the JSCI, and the IGI.

Spokesperson Steve Mahlangu used his words sparingly, stating that his department felt it would not be “prudent to make a pronouncement in the media regarding legislative proposals that may change during the course of finalisation of the Bill”. He said that the bill “among others (sic), seeks to address the constitutional defects” in Rica.

The SSA’s Scott, however, gave the impression that changes to Rica could go beyond what the Constitutional Court ordered.

“In light of the Constitutional Court judgment of February 2021, an extensive amendment of the legislation is in progress to address the constitutional invalidity of the identified provisions, as well as to address other aspects of the legislation which have become outdated,” said Scott. DM

Heidi Swart is a journalist who reports on surveillance and data privacy. This report was commissioned by the Media Policy and Democracy Project, an initiative of the University of Johannesburg’s Department of Journalism, Film and TV and Unisa’s Department of Communication Science.

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