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EXPLAINER: Why you should care that parts of RICA are unlawful

Sep 18 2019 17:35
Lameez Omarjee, Fin24

The South Gauteng High Court in Johannesburg on Monday ruled that parts of RICA are unconstitutional.

The Regulation of Interception of Communications and Provision of Communication-Related Information Act - better known as RICA - was passed in 2002 and came into effect in 2005. It regulates when government can surveil citizens through the interception of their communications.

Its aim is to protect the privacy of communications, with exceptions which are limited to serious crimes or threats to national security.

However, the applicants in the matter – investigative journalism centre amaBhungane and its managing partner Sam Sole – sought to challenge the Act, which they say is being abused.

Although most citizens may have encountered RICA when registering their cellphone numbers, the case is rather about surveillance, said partner at Webber Wentzel Attorneys, Dario Milo. It may not affect you when you buy your next phone, but you should still care about the ruling.

"Citizens should care about when the privacy of their communications is being invaded without justification," he said in an emailed reply to questions.

Here’s what you need to know - and why.

Who are the parties involved?

The amaBhungane Centre for Investigative Journalism, and its managing partner Sam Sole, lodged the application. According to the judgment, applicants put forward examples of how the RICA act was abused.

News24 reported previously that Sole had been spied on, at the time he was investigating a National Prosecuting Authority (NPA) decision to drop corruption charges against former president Jacob Zuma.

amaBhungane was not given reasons for the surveillance; however, the State Security Agency confirmed that there was an order from a judge allowing the interception, according to News24.

The respondents in the matter include ministers of state security, justice and correctional services, communications, defence and military veterans, police and telecommunications and postal services.

Other respondents included the Office for Interception Centres, the National Communications Centre, the State Security Agency, the joint standing committee of intelligence, and the office of the inspector general of intelligence.

The Right2Know Campaign and Privacy International joint the matter as friends of the court.

Judge Roland Sutherland heard the matter in June and made the ruling on Monday September 16.

What was legally challenged?

There are two things the applicants challenged.

The first is the constitutionality of some provisions of the Act, which permits the interception of communications of any person by any authorised state officials, subject to prescribed conditions. The applicants put forward that certain provisions of RICA are "at odds with the Constitution".

Secondly, they challenged a practice of the State to implement "bulk interceptions" of telecommunications traffic, on the basis that no lawful authority exists to do so. Under RICA, the state is allowed to tap telecommunications to detect any transnational threats.

The applicants sought various forms of relief, according to the judgment. For example, the judge who is to authorise secret interception should be appointed by the Judicial Service Commission and not the minister of justice. Also, the person who has been surveilled must be notified, as a remedy any "abuse" of the surveillance process.

What did the judge consider?

The right of someone to be notified that they have been surveilled is not provided for in the Act, and Sutherland was in favour of a person being notified of their surveillance.

"In my view, the need for protection from abuse through accountability before a court can be effected practicably, by a post surveillance notification, as is the case in other democratic societies," Sutherland said.

The second challenge relates to the designated judge who authorises the interception in both real time and archived communications. The act calls for an experienced jurist or retired judge to make such a call. But Sutherland said this is limiting.

"Plainly, restricting the pool of eligibility of such persons is a crucial dimension of the credibility of what is represented to the citizenry as the epitome of independence, impartiality, legal knowledge and decision-making skill."

Further to the designated judge being appointed by the minister of justice, Sutherland is of the view that the minister should in the interim appoint the designated judges but the appointees must be nominated by the Chief Justice and the minister must be obliged to accept those nominations.

The judge also considered the archiving of data, and then the accessing of archived communications. RICA allows for interception in real time, and of archived communications which are stored at statutory Interception Centres.

Additionally, telecommunications service providers must also retain data for three years.

"In short, all of a person's personal telecommunications, up to three years past, lie in wait for the state to pry into, if its officials convince a judicial officer to authorise access," Sutherland said.

The judge further considered the protection of legal privilege and journalists confidential sources. Both lawyers and journalists have obligations to preserve confidential communications from clients and secret sources, respectively, Sutherland noted. He added that the relief being sought by applicants is appropriate.

Sutherland additionally considered bulk interceptions - which allows the state to tap into transnational telecommunications to detect transnational threats. It is possible for the state to capture communications between two South Africans, in South Africa - if, say, the signal were passed through a server outside South Africa.

What did the judge conclude?

Sutherland found that certain provisions of RICA – sections 16(7), 17(6),18(3)(a), 19(6), 20(6) and 22(7) of RICA were inconsistent with the Constitution.

Further, the practice of bulk interceptions is unlawful.

The declarations the court made are suspended for two years to allow Parliament to make the necessary changes.

Among the changes to be introduced in legislation include notifying the person of their surveillance in writing within 90 days of the activity.

Secondly, changes must be made to ensure the independence of the designated judge. In other words, the appointment of the designated RICA judge must not entirely vest in a minister, but the chief justice can make a recommendation of who must be appointed. If the minister disagrees with the nomination, then the chief justice should make another nomination, Thami Nkosi, Secrecy and Surveillance Organiser of Right2Know told Fin24.

When it comes to the surveillance of lawyers and journalists, extra safeguards should be in place. Milo said the ruling applies to all citizens but when there are applications for the surveillance of journalists and lawyers, heightened protection must be applied.

What happens of Parliament does not make required changes in the next two years?

Milo said the relevant sections which are being challenged would be struck down in their entirety, without Parliament having taken the opportunity to debate how they should be fixed. 

Why should South Africans care about this?

Nkosi said the case, although lodged by a journalist, is in the public interest. Bulk surveillance compromises every citizen. Nkosi does not think the state would challenge this ruling.

What happens next?

The High Court order will need to be confirmed by the Constitutional Court, according to Bowman lawyers Talita Laubscher and Chloë Loubser, who authored a piece on the ruling.

"A senior state law advisor has, however, indicated that the legislature is already working on revising RICA and may replace the legislation entirely, rather than effecting a series of amendments," they added.

amabhungane  |  rica  |  law  |  surveillance  |  parliament
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