Surveillance and the State – Moneyweb

In early 2021, the South African Constitutional Court found that the country's National Security Agency had illegally conducted mass interception of electronic signals through its signals intelligence agency, the National Communications Centre.

Bulk interception involves the monitoring of electronic signals, such as communications signals or Internet traffic, on a very large scale, often in a non-targeted manner. If intelligence agents misused this feature, it could have a significant negative impact on the privacy of innocent people.

The court found that there is no law authorizing the implementation of bulk surveillance and limiting its potential for abuse. It ordered the agency to cease such monitoring until such monitoring is conducted.

In November 2023, the South African Presidency responded to this judgment by introducing legislation specifically to bridge the gaps identified by the country's Supreme Court. The General Information Law Amendment Bill sets out how surveillance centers based in the capital Pretoria should be regulated.

I have been researching intelligence and surveillance for more than a decade and served on the National Security Agency's High-Level Review Committee in 2018. In my view, this bill lacks basic regulation of how this highly invasive form of surveillance should be used. This violates citizens' privacy and increases the likelihood that the state will repeat previous abuses. Some of these abuses are discussed below.

Risk

Intelligence agencies use bulk wiretapping to keep large numbers of people, even entire populations, under surveillance. This is regardless of whether they are suspected of serious crimes or are a threat to national security. Their purpose is to obtain strategic information about long-term external threats to the country's security, which may be difficult to obtain by other means.

The leak of classified intelligence documents by former US National Security Agency contractor Edward Snowden showed how these capabilities were being used to spy on US citizens. The leaks also showed that British intelligence spied on African trade negotiators, politicians and businessmen, giving the British government and its partners an unfair trade advantage.

In South Africa, around 2005, rogue operatives from the former National Intelligence Service exploited bulk wiretapping to spy on senior members of the ruling African National Congress, opposition parties, businessmen, and civil servants. This was despite the agency's mandate to focus on foreign threats.

These rogue agents were able to exploit bulk intercepts because there were no laws governing and restricting how these capabilities could be used. A 2008 commission of inquiry appointed by then-Information Minister Ronnie Kasrils called for the law to be enacted. The government refused to do so until forced to do so by a Constitutional Court ruling.

The government justified its refusal to act by arguing that national communications centers are properly regulated by the National Strategic Intelligence Act. The court rejected this argument because the law does not directly address the regulation of bulk wiretapping.

What the Constitutional Court said

The 2021 Constitutional Court ruling does not address whether mass wiretapping should be accepted as surveillance. But it appears to have accepted the agency's claim that it is an internationally accepted method of monitoring cross-border signals. However, the legitimacy of this practice is hotly debated internationally. This is because this form of surveillance typically goes far beyond what is necessary to protect national security.

The court expressed its desire to enact a law authorizing blanket monitoring that would define “the basics of the center's functioning.”The law will also need to be clearly defined.

Clearly and accurately express the method, circumstances, or period of collection, collection, evaluation, and analysis of domestic and foreign information.

The court will also look into the details.

How should these different types of intelligence be captured, copied, stored, or distributed?

Contents of the proposed amendment

The proposed amendment stipulates the appropriate establishment and functions of the National Exchange Center. This includes gathering and analyzing intelligence from electronic signals and information security or encryption. A parliamentary select committee has set a deadline for public comment of February 15, 2024.

The bill vaguely states that the center will collect, correlate, evaluate and analyze relevant information to identify threats or potential threats to national security. However, no details were provided regarding the details the court is seeking. This is a major weakness.

However, this bill has one strength. It states that the monitoring center must receive permission from a retired judge, with the assistance of two interception experts, before conducting bulk intercepts. Judges are appointed by the president, and experts are appointed by the minister of information. The position is that of the president.

However, the basis for the judge's decision is not specified. The fact that judges are appointed from executives also raises questions about their independence.

inappropriate benchmarks

The bill does not incorporate international standards for regulating strategic intelligence and mass interception in democracies. These require national legal frameworks to provide what the European Court of Human Rights calls “end-to-end” safeguards, covering all stages of bulk interception.

The European Court of Justice has stated that it should be defined in national legal frameworks.

• Grounds for permitting bulk interception
• situation
• Steps to follow to grant authorization
• Procedures for selecting, examining, and using material obtained from intercepts

A framework should also be established.

• Precautions to take when communicating materials to other parties
• Interception period limit
• Procedures for storing intercepted materials
• Circumstances under which such material must be erased and destroyed
• Supervisory procedures by independent authorities
• Compliance procedures for reviewing post-completion monitoring.

This bill does not meet these requirements.

It is not enough to incorporate these details into regulations, as the bill gives the Minister of Information too much power to set the ground rules for bulk wiretapping. These rules are also unlikely to receive the same level of public scrutiny as the bill.

The fact that the president is trying to get away with the bare minimum of bulk wiretapping raises questions about his stated commitment to intelligence reform to limit the scope of abuse, and Congress is seeking to get away with the bill's clear Defects need to be corrected.

Jane Duncan is Professor of Digital Society at the University of Glasgow.

This article is republished from The Conversation under a Creative Commons license. Read the original article.