Journalists take SA government to court over spying


The Amabhungane Centre for Investigative Journalism has gone to court to challenge the RICA act, which it says is unconstitutional and is being used to spy on citizens.

Amabhungane and its managing partner Sam Sole filed papers in the North Gauteng High Court in Pretoria this week against the Minister of Justice and Correctional Services, the Minister of State Security, the Minister of Communications, the Minister of Defence and Military Veterans, the Minister of Police, the office of the Inspector General of Intelligence, the office for interception centres, the National Communications Centre, the joint standing committee on intelligence and the State Security Agency.

Amabhungane said the RICA (Regulation of Interception of Communication and Provision of Communication Related Information Act) is unconstitutional as it does not let subjects know they are being monitored, either by phonecalls, meetings, emails and messages. These recordings are then stored indefinitely.

Amabhungane also says RICA is inconsistent with the constitution and invalid as it fails to prescribe proper procedure when state officials are examining and storing information; the appointed RICA judge is not independent and RICA does not regulate bulk surveillance and foreign signals interception by state officials.

In the application, Amabhungane says RICA does not protect people like lawyers and journalists who have confidential communication rights in order to protect sources and clients.

Sole said he became aware of being spied on in 2009 when President Jacob Zuma’s acolytes told him he was being recorded amidst the Spy Tapes saga.
“The core issue is that legislation governing legal interception…was conceived when most people thought of monitoring communications as being a rare right granted by a judge to…tape and listen in on the conversations of criminals and terrorists.
“The law’s safeguards, inadequate then, are dangerously weak now. That’s 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,” Sole said, noting that US whistleblower Edward Snowden revealed how such surveillance is possible and eliminates privacy on a global scale.

Amabhungane says in South Africa, close to 100% of interception applications are granted by the RICA judge. A 2009/10 JSCI Report showed over a four-year period since the Office for Interception Centres was established, three million interceptions were done.
“We are going to court…in order to strengthen the protection of citizens – and journalists – against the potential abuse of this necessary but intrusive legislation,” Sole said.
“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.
“It is important to emphasise that we are not arguing that the interception of communications is in all circumstances unconstitutional and impermissible. It remains a vital intelligence-gathering and policing tool.
“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.”
“RICA is South Africa’s main surveillance law: it is the rulebook that says how and when the South African government can intercept your private communications: your calls, messages, emails, and internet activity,” the Right2Know campaign said when launching an activist guide to communications surveillance yesterday.
“Privacy is a basic human right enshrined in section 14 of South Africa’s constitution. In South Africa, just like all over the world, there are growing concerns that the government’s surveillance capacity – its ability to listen in on people’s private communications or gather information on their activities – is being abused.
“There is evidence in South Africa that surveillance is used to target journalists, political activists, unionists, and to interfere in our politics and public life. There are also broader concerns that this affects not only a few individuals, but millions of ordinary people in South Africa who use communication every day. Some of this is because of the broad powers that are contained in RICA, some of this is because of communications surveillance that is conducted outside of the powers of RICA,” Right2Know said.