When US electronic surveillance whistle-blower Edward Snowden recently revealed how US and British intelligence agencies had monitored the communications of South African and other nations' politicians and diplomats as well as those of private citizens, South Africa reacted with outrage and demanded action. The irony is that South Africa probably does the same or even worse.
South Africa has, in place, a network of laws, some dating from the previous political dispensation and various intelligence centres through which it spies on its own citizens and on foreign citizens, diplomats and businessmen. There are scant oversight mechanisms in place to protect the constitutional rights of individuals and even these are ignored or abused.
Espionage has always been a dirty word in a profession perceived to be associated with faceless people with fake identities who snoop around in forbidden places with little regard for anyone’s right to privacy. No wonder they are referred to as 'spooks'.
They often believe they may do all of this without any rules applying to them because they do so in 'national interest'.
The interface between 'national security' and civil liberties, including the right to privacy, has always presented a dichotomous dilemma. There is also an inherent conflict between countries’ good relations, and what is considered to be in 'national interest'.
Conventional wisdom seems to be that national security and interest override all other considerations, which opens the door wide for abuse.
For modern democracies, the uncomfortable truth is that in getting the 'dirty job' of spying done effectively often rules are bent or ignored, and accountability and transparency run thin.
It is in this context that the Snowden revelations about US and British espionage activities, involving their own citizens and those of other countries, should be considered.
The electronic surveillance technology used by both, and apparently also in South Africa, boils down to this: to catch the one potentially rotten fish, the communications and related activities of everybody is trawled in a dragnet operation.
Language recognition programmes search this mass of data for key words and, when found, these are the bits that land in files marked “National Security Risk”. What eventually happens with the rest, is anybody’s guess.
In the modern world of digital technologies most people constantly leave a detectable trail behind that can easily be picked up by anyone snooping on them. Without even leaving their homes, their entire life history is captured by essentially two activities: their everyday financial transactions and their electronic communications.
The South African government has both areas covered, the one through the Regulation of Interception of Communications and Provision of Communication related Information Act (RICA) and the other through the Financial Intelligence Centre Act(Fica).
'Big Brother' can monitor your every move and there is no guarantee that this is not being done all the time to ordinary citizens who have absolutely no intentions of overthrowing the government.
A highly secretive electronic intelligence centre specially geared for just that, called the National Communication Centre (NCC), has even been set up.
While both Rica and Fica were justified as necessary to combat organised crime, the general security paranoia in much of the world following the 9/11 attacks in the US also had much to do with it.
The scope for abuse, however, is clearly illustrated by recent incidents of state intelligence gathering in South Africa being used for narrow political ends. These include the infamous hoax email saga where emails aimed at discrediting then Deputy President Jacob Zuma were allegedly intercepted by the National Intelligence Agency when they were supposedly being circulated among senior political figures, the Zuma corruption case tapes, and the tapping of phone conversations of former police commissioner Bheki Cele and two Sunday Times journalists.
The fact is, these laws theoretically provide the state carte blanche access to every citizen’s most private affairs.
To operate its wide monitoring of citizens, and foreigners, besides Fica and Rica, government also enacted the Protection of Constitutional Democracy Against Terrorist and Related Activities Act of 2004 in addition to the earlier Prevention of Organised Crime Act of 1998.
The Protection of State Information Bill, presently in process of enactment, will probably provide additional cover for activities of the state in terms of the above laws while the new General Intelligence Laws Amendment Bill, only awaiting President Jacob Zuma’s signature, will substantially increase the state’s ability to monitor and intercept signals, especially foreign ones.
Using increasing cyber attacks and crimes, the attack recently on the ANC’s website and the 419 criminal scams in South Africa, among other, as justification, government is considering new legislation to monitor and intercept internet usage.
Fica, among other things, forces banks and financial services providers, through the Financial Intelligence Centre (FIC), to monitor, keep records, report on or divulge information about all their clients. Every client’s identity is verified and his or her residential address and other personal details are on file.
It also states: “The other objectives of the Centre are - (a) to make information collected by it available to investigating authorities, the intelligence services and the South African Revenue Service to facilitate the administration and enforcement of the laws of the Republic.”
It allows the FIC to “engage in any lawful activity, whether alone or together with any other organisation in the Republic or elsewhere, aimed at promoting its objectives” and to “do anything that is incidental to the exercise of any of its powers”.
All records held by financial institutions in terms of Fica have to be kept for at least five years and “an authorised representative of the Centre” may access any such records.
The only public protection is that a magistrate or judge must issue a warrant for such access. But judges or magistrates can be hoodwinked into providing warrants, as happened in the case of Cele and the two journalists, although in that case, Rica applied.
Financial institutions are obliged to report any large, unusual or suspicious money transactions, or any movement of cash into or out of the country. A judge may then order the financial institution to report all activities in the account of a suspect client to the centre for three months.
To access information through Rica similar processes are in place, but these are shrouded in total secrecy and are often by-passed illegally, as was revealed by intelligence leaks in 2005 and 2006.
Rica forces citizens to register their cellphone SIM cards with verified identities and addresses and to identify themselves for using internet services. Unlike in the US, Rica makes intelligence interception legal, including so-called “live interception” where information of communications such as phone calls, emails and internet sessions have to be provided to the Office of Interception Centres on the strength of a warrant.
The issuing of a warrant can be circumvented in certain circumstances and a 2008 ministerial review on intelligence is said to have revealed much abuse of the system.
Unlike in the US, South African phone companies are obliged by law to provide this information and must put in place at their own cost infrastructure that enables monitoring of traffic on their networks.
At the heart of this electronic surveillance network is the NCC which, like all other intelligence agencies in South Africa, is shrouded in secrecy, operates outside of normal laws and is relatively free of oversight. Not even discussions by Parliament’s intelligence committee may be made public.
Former Intelligence minister Ronnie Kasrils, who by law cannot comment directly on intelligence matters about which he has knowledge, said in a recent interview in the Mail & Guardian that nobody should be surprised anywhere in the world that governments do this as “the ability is there”.