The National Assembly’s Ad Hoc Committee on Intelligence Legislation is recommending that a raft of laws under consideration by it be shelved until after the election, the Parliamentary Monitoring Group reports.
The committee, created in February to consider the Protection of Information Billamendments to the Intelligence Services Amendment Bill, the National Strategic Intelligence Amendment Bill. that will replace a 1984 Act with the same title, is also considering
The latter concerns the creation of a National Communications Centre (NCC) as a legal entity separate from the National Intelligence Agency. There is some debate within the committee whether the NCC, which has been called a snooping agency, should be a department of state or a lesser body.
Ministry of Intelligence legal advisor Kerensa Millard in June told Parliament 500 posts had been approved for the NCC and 300 of these were filled.
In his 2004 budget vote, then-intelligence minister Ronnie Kasrils said the NCC was “our state-of-the-art communications monitoring section and is vital to our country’s security”.
Kasrils – who that year revealed the civilian intelligence budget for the first and last time – added that the NCC was “staffed by extremely dedicated and highly skilled personnel. It is involved in establishing the Office of Interceptions Centre and operates in strict compliance with the law under a judge’s authorisation.
“The NCC must ensure investment and training in information technology,” he added.
Kasrils put the 2004/5 civilian intelligence services budget at R1 978 647 000, at the time 0.53% of total government spending and 0.14% of gross domestic product. Efforts to establish the current intelligence budget have met with little success. It is not reflected in the annual budget documentation of the National Treasury and Kasrils’ 2008/9 budget vote speech last month made no mention of it.
Millard told MPs the NCC could monitor all private and public communications in terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act.
Protection of Information Bill
The Protection of Information Bill seeks to modernise the information lifecycle management (ILM) regime for the state and state entities, as well as regulating “private intelligence”, a new development.
An explanatory note tabled at the ad hoc committee`s last meeting on 15 October explicated that the current regime was based on Minimum Information Security Standards (“MISS”) approved by Cabinet in December 1998 as part of a national information security policy.
“The MISS replaced the former Guidelines for the Protection of Classified Information (SP 2/8/1) of March 1988. The MISS applies to all departments of State subject to the Public Service Act 103 of 1994 or any other department that handles classified information in the national interest,” the memorandum says.
However, the current system “requires the spending of a great deal of government resources to protect a mass of information that does not actually require protection.
“The absence of a comprehensive statutory framework has resulted in an unstable and inconsistent classification and declassification environment, excessive costs and inadequate implementation. Government departments are straining under the burden of massive amounts of classified documentation. A lack of clarity and direction on what actually requires protection has resulted in this state of affairs,” the memorandum further notes.
“The current protection regime, some of which was inherited from the apartheid era, encourages the needless protection of huge amounts of information. There still exists to some degree a default position of secrecy. This approach is inconsistent with South Africa`s new constitutional order.”
The memorandum says the new regime will deal with questions such as:
· What information may be classified and what information may not be classified?
· Who may classify information?
· When should classified information be declassified and who can declassify information?
· How long should information remain classified and when should classified information be automatically declassified?
· What procedures for classification and declassification should be put in place and who should make such procedures?
· What system for the review of classified information should be put in place and what criteria or factors should be considered when classified information is reviewed?
· Should reports be made to Parliament in relation to the application of the classification and declassification standards and procedures?
· Should procedures be made for requests for the review of the classified status of information and if so what type of procedure and who may make such requests?
· Can declassified information be released to the public?
· What kind of oversight is required for the system of information protection?
· Should there be a central database with all declassified information which is available to the public and if so, who should establish and maintain such a database?
“The aim then is to provide a statutory framework which provides direction to those in government who are charged with information protection; substantially reduce the amount of state information that is protected from disclosure; provide more effective protection to that information that truly requires safeguarding; and to align the information protection regime with the values, rights and freedoms enshrined in the Constitution.”
Private intelligence
The Bill also prescribes private intelligence and proscribes foreign intelligence organisations in SA. A background note, also tabled last week, adds that in addition to ILM, the Bill also aims to “fill the existing legal gap in relation to threats faced by the state from private intelligence companies, or individuals engaged in private intelligence collection by identifying and criminalising those actions that undermine the security of the state.
“Of particular concern to the state, has been the extent to which individuals with links to foreign intelligence structures attempted to undermine statutory national intelligence structures by peddling false information aimed at sowing dissent. The draft Bill criminalises such conduct.”
The document notes the Bill`s drafters had in mind the “Browse Mole” report that claimed African National Congress president Jacob Zuma was receiving foreign funding to bring him to power as well as the “Meiring report” by post-apartheid SANDF chief Georg Meiring that accused his then-deputy and successor Siphiwe Nyanda of plotting a coup.
“In both instances, individuals operating outside of the state have brought information to state security and intelligence services about prominent South Africans allegedly involved in conspiracies against the government,” the backgrounder says. In both instances the allegations were untrue.
A Review Commission on the Regulation of the Private Security Industry focussing on “Private Intelligence” identified three instances where the activities of private intelligence companies could threaten national security:
· Where they act as fronts for foreign interests with the intention of causing harm to the South African state;
· Where they engage in unlawful covert collection of information. “In this regard, a distinction must be made between protection of personal information and protection of information”;
· Where the disclosure poses a threat to national security.
The backgrounder says these activities can be broken down into main categories:
· Where individuals access protected information and distribute it to individuals whose intention is either to undermine the state or give undue advantage to a foreign interest or state;
· Where individuals peddle false information such as that contained in the Meiring Report or the Browse Mole document with the intention of sowing dissent
“In this regard, the following offences are created:
· Espionage Offences: where the objective is to give advantage to another state ;
· Hostile Activity Offences aimed at prejudicing the state to prejudice the state ;
· Harbouring or concealing persons involved in espionage or hostile activities;
· Provision of false information to a national intelligence structure
· In addition, the Bill requires intelligence agents that are resident in South Africa to register, and criminalises non registration.
Millard told the committee the ministry did not expect such agents to register. The clause was there as a “catch all” means to prosecute them when they were discovered. She added that the ministry also did not plan to regulate “business intelligence” professionals, researchers or investigate companies that provided business decision support and strategic consulting.
Delay
But after reaching an impasse on the definition of private intelligence and the treatment of private intelligence companies, the PMG reports the committee decided that too much work still needs to be done on the Bill and that the time left in the current parliamentary term is insufficient to do so.
“The Committee resolved to recommend to the House, that the Minister withdraw the three bills. The Committee furthermore recommended that the Bills be reintroduced in the new Fourth Parliament,” the PMG reports.
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