September 19, 2021

Intelligence report reveals ‘shocking reality’ around the interception of communication in South Africa

South Africa’s Interception Decide, Bess Nkabinde, says that the nation’s Workplace for Interception Centre (OIC) is being hamstrung by outdated expertise – and there’s a distinct lack of belief when coping with state authorities which might be placing in requests to intercept communications of non-public people.

Nkabinde tabled her workplace’s intelligence report to the Joint Standing Committee on Intelligence (JSCI) on Friday (10 September), elevating purple flags on the state of South Africa’s intelligence operations.

It’s the accountability of the Interception Decide to approve or log off varied requests for wiretaps, bugging and communication interceptions at the request of South Africa’s varied authorities.

This contains the Monetary Intelligence Centre (FIC), the State Safety Company (SSA), and the South African Police Service (SAPS).

These businesses have made lots of of functions to intercept non-public communications in the final three years, virtually all of which had been accepted. Nevertheless, Decide Nkabinde’s report has highlighted a number of evident points with the course of, making a minefield of constitutional issues.

In keeping with Nkabinde, the points vary from administrative and technological, to questions of belief.

She stated that her workplace merely can’t maintain observe of all the totally different requests, as new case numbers are assigned to every utility even when they relate to the similar suspect flagged for surveillance. The case numbers additionally don’t match up with the numbers held by every respective authority.

Her workplace additionally doesn’t obtain all functions, as some requests – equivalent to entry warrants – are dealt with by different regulation enforcement businesses, resulting in additional confusion.

The shortcoming to reconcile case numbers can also be a outcome of dealing with processes manually, and never via digital methods. The workplace’s methods are additionally unreliable, and common crashes outcome in the loss of intercepted communications.

That is if authorities are in a position to intercept communications successfully – interception at the workplace is proscribed to voice and SMS knowledge, which implies that 99% of a goal’s communications is misplaced, Nkabinde stated.

“(The office is unable) to intercept other forms of communication like WhatsApp, including WhatsApp voice calls, Skype, emails, Facebook and other social media platforms,” she stated.

Probably the most worrying downside, nevertheless, is that there’s merely no solution to verify whether or not the functions for interception are true or not – and excessive profile courtroom circumstances in the previous two years have proven that authorities are greater than succesful of fabricating case recordsdata to get permission to spy on unrelated actions.

“The (untruthfulness) of most deponents to the affidavits submitted in support of the interception are, as we have seen, a matter serious concern. The Interception Judge is unable to verify the truthfulness of the statements made,” she stated.

Decide Nkabinde stated state authorities mendacity to get interceptions accepted was a “shocking reality”, noting two circumstances highlighted in courtroom proceedings the place state businesses intercepted journalist communications, the place police officers had fabricated and misrepresented info to the Interception Decide.

In these circumstances, the SAPS informed the decide that the telephone numbers belonged to suspected ATM bombers.

In one other case, authorities received permission to intercept a person’s communications after linking them to overseas intelligence companies via leaked emails. It was later revealed that the investigating authorities fabricated the emails.

“Undisputed evidence was before the court that in certain instances, the agencies can obtain fictional intelligence reports about an individual. They would produce a report of that nature even where they have conducted surveillance that did not yield the desired report,” Nkibande stated.

RICA

South Africa’s spy issues are nicely documented and had been dropped at the fore in the 2019 courtroom case difficult the constitutionality of the Regulation of Interception of Communications and Provision of Communication-Associated Data (RICA) Act.

The problem to RICA’s constitutionality arose when one of the journalists of the investigative journalist group, amaBhungane, found that he was being spied on throughout South Africa’s notorious “Zuma Spy Tapes” saga.

The case was dropped at the Excessive Courtroom in 2019, the place it discovered RICA to be missing key protections for targets, particularly:

  • The act fails to adequately prescribe the process for notifying an individual whose info has been intercepted;
  • The act fails to adequately prescribe the correct procedures to be adopted  when state officers are inspecting, copying, sharing and sorting via knowledge  obtained via interceptions;
  • The act fails to adequately deal with conditions the place the topic of surveillance is both a practising lawyer or a journalist.

This ruling was upheld by the Constitutional Courtroom in 2020, giving the authorities 36 months to rectify the challenge.

In keeping with Nkibande, the issues highlighted by her workplace present that there are nonetheless not satisfactory safeguards in place to minimise intrusions into the privateness of focused people.

“The State Security Agency and the Financial Intelligence Centre did not submit their reports. This is regrettable because the agencies’ reports are important as they provide a complete picture on the efficacy – supposedly including the inadequacies – of the RICA process,” she stated.


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