Threats to privacy and the freedom of expression - a family affair

The ugly sister

The "ugly sister" of the Protection of State Information Bill (State Information Bill), the draft General Intelligence Laws Amendment Bill (GILAB) also known as the "Spy Bill", is being debated by the Ad Hoc GILAB Committee this month. GILAB proposes that the National Strategic Intelligence Act, No 39 of 1994 be amended to allow the State Security Agency to collect and analyse so-called "foreign signals intelligence" in accordance with the "intelligence priorities of the Republic". "Foreign signals intelligence" is defined in GILAB as being intelligence derived from the interception of electromagnetic, acoustic and other signals, and includes any communication that emanates from outside the borders of the Republic or passes through or ends in the Republic. The "intelligence priorities of the Republic" is a vague and undefined concept.

The Regulation of Interception of Communications and Provision of Communication-Related Information Act, No 70 of 2002 (RICA) provides that, subject to certain exceptions, no person may intentionally intercept or attempt to intercept, at any place in the Republic, any communication in the course of its occurrence or transmission. RICA provides that security services may not intercept electronic communications without judicial authorisation.

On the face of it, it would seem that RICA would apply to all electronic communications regardless of their origin. In practice, however, the Minister of State Security and the State Security Agency have made it abundantly clear that they regard RICA as having domestic application only and that bulk monitoring and interception of communications of foreign communications (which would include applications with servers based in foreign countries, such as Gmail, Skype, Twitter and Facebook) may take place without a warrant or any other form of judicial oversight.

There is no express provision in GILAB to the effect that the collection and analysis of foreign signals intelligence be subject to RICA.

Electronic communications is, by its very nature, bidirectional. The use by persons in South Africa of any applications/services which have servers situated in a foreign country or the exchange of information with a person in a foreign country inevitably results in signals being sent that are of foreign origin even if the communication is initiated in South Africa.

The right to privacy is a universal human right that is protected by our Constitution. It applies to any person within South Africa and to South Africans outside the Republic's borders. Given the stance taken by state intelligence structures that RICA does not apply to foreign communications, GILAB should expressly state that the interception of foreign signals intelligence is subject to RICA. Failure to subject the interception of foreign signal intelligence to RICA will leave the door open to unconstitutional intrusions upon the right to privacy. In the absence of safeguards against unlawful infringements of the right to privacy in the context of foreign signals intelligence will inevitably result in the limitation of the right to freedom of expression.

<>The unattractive cousins

Provisions of both the Independent Communications Authority of South Africa Amendment Bill 2012 and the Electronic Communications Act Amendment Bill 2012 also contain provisions that, if enacted, will potentially constrain the right to freedom of expression. In this context the Bills can be cast as the unattractive cousins to the State Intelligence Bill and GILAB.

The existence of an independent regulator of electronic communications (which includes broadcasting) underpins the right to freedom of expression. Electronic communications services and broadcasting services afford persons in every walk of life a rapid and reliable means of receiving and/or exchanging ideas and information. Section 192 of the Constitution guarantees independent regulation of broadcasting in the public interest in order to ensure fairness and diversity of views broadly representing South African society. The independence of Independent Communications Authority of South Africa (ICASA) is constitutionally guaranteed. This constitutional guarantee is affirmed in ICASA's enabling legislation, which provides that ICASA is independent subject only to the Constitution and the law and requires ICASA to perform its functions without fear, favour or prejudice. ICASA must, in addition, function without any political or commercial interference.

In terms of current legislation, ICASA is bound to consider the Minister's policy directions and directives and, accordingly, has discretion to implement these directions and directives. Proposed amendments to the Electronic Communications Act will require ICASA to implement ministerial directions and directives.

Also in terms of current legislation, ICASA is mandated to constitute the Complaints and Compliance Committee that deals with complaints and issues related to non-compliance on the part of licensees. The Complaints and Compliance Committee makes recommendations to ICASA that it may, in its sole discretion, accept or reject. Proposed amendments to the ICASA Act provide for the establishment of a Complaints and Compliance Commission that will replace the Complaints and Compliance Committee. In terms of the ICASA Bill, the Minister (and not ICASA) must establish the new Complaints and Compliance Commission and appoint a chairman. If the ICASA Bill is enacted ICASA's independence will be usurped by the fact that the Complaints and Compliance Commission will be empowered to require ICASA to amend or revoke licences. Whereas the Complaints and Compliance Committee currently makes non-binding recommendations to ICASA for its consideration, the Complaints and Compliance Commission is empowered to make decisions which would be binding on ICASA.

Absent an independent regulator of electronic communications, the means by which ideas and information are freely exchanged as well as persons who provide electronic communications services, network services and broadcasting services will be exposed to potential political interference that would inhibit the free exchange of ideas and information, thus limiting the rights to freedom of expression.