Stopping the Spies: Constructing and resisting the surveillance state in South Africa by Jane Duncan
Wits University Press
The fact that South Africa has a lawful, targeted interception “regime” that forbids arbitrary interception, and requires judicial authorisation for interceptions, is a major advance on the situation under apartheid. It is also ahead of other countries that make the granting of interception directions political decisions taken by executive arms of government.
However, there are clearly major flaws in the system. The targeted surveillance capacities of the state, and the law that underpins them, the Regulation of Interception and Provision of Communication-related Information Act (Rica), have become dated. It would also seem that, despite these problems, the police and the State Security Agency are also increasingly heavy users of the Rica system, suggesting that the need for interception capabilities is growing. Intercept information has been used in the successful prosecution of a number of cases, especially where criminals had committed basic mistakes using their cellphones.
In 2011, for instance, university student Mutshutshu Milton Muvhango was convicted for the murder of his girlfriend after the police obtained their cellphone records, which played a key role in the investigation. In a ringing success for Rica’s utility as a crime fighting tool, in 2012, members of an abalone smuggling gang were convicted after their calls were recorded by the Scorpions following an application to the designated judge. In a 2014 case, Ivan Jacobs was convicted for the murder of his wife after his cellphone records contradicted his statement about his whereabouts at the time of her death. In another case where judgment was delivered in 2015, Subscriber Identity Module (SIM) card registration information proved useful to trace the associates of a suspect, who was subsequently convicted as the communications trail eventually linked the suspect to the murder through a massive trail of circumstantial evidence.
There have also been cases where the intercept information introduced into court proceedings has proved controversial, though. In a 2008 case that spanned three years, involving the theft of a large consignment of cigarettes from British American Tobacco, some intercept information that was obtained through the Criminal Procedures Act was ruled inadmissible as the magistrate failed to appreciate the test that he was required to apply in considering the application for a procedure. The case provided interesting insights into the type of information service providers give to law enforcement officials on receipt of a subpoena, and this includes the International Mobile Subscriber Identity number associated with that particular SIM card, the handset’s International Mobile Equipment Identity number, call dates and types, whether the call was made or received and its duration, the number dialled or received, outgoing SMSes, the base stations the phone connected to and the originating base station. The police used that information not only to determine the movements of the suspect, but linkages to his number as well, using a method of mapping geographic movements called “geo-informatics”. This technique allows calls and cellphone locations to be linked using call tower identification, allowing maps to be generated that provided damning evidence of the planning, execution and escape from the robbery.
However, there is insufficient evidence that the state’s seemingly insatiable thirst for intercept information is resulting in increased arrests and convictions, and the specific examples of successes mentioned above do not help to answer this broader question.
On the contrary, the infamous trial of Glenn Agliotti pointed to holes in the system. Agliotti is a controversial businessman who was accused of murdering mining magnate Brett Kebble, but was subsequently acquitted. Part of the reason Agliotti was found not guilty was because his cellphone records were obtained illegally during the investigation. In his judgment, Judge [Frans] Kgomo had this to say about the cavalier approach of the police to their acquisition of cellphone records, which pointed to interceptions not being as targeted as they should be: “Abuse of the system by the police was demonstrated by Hodes SC during cross-examination of these cellphone ‘experts’. [This] elicited a question from me at one stage to the effect whether if and when this country’s state president’s phone records were subpoenaed, whether they [the cellphone companies] would issue them out without much ado. The answer was that those records would be extracted and handed over without asking another question. It is my considered view that if this state of affairs did occur or does occur and is allowed to persist, WE SHOULD ALL BE AFRAID, VERY AFRAID!”
Heidi Swart’s investigations have also pointed to the police adding numbers to existing surveillance projects without the permission from a judge.
In any event, it is more than likely that the judge will approve applications for interception directions even if they come before him or her: by 2014, the judge was handling approximately three applications per day. With limited capacity to scrutinise these applications, it is hardly surprising that serious failures have crept in. The Rica process and institutions has been run down, and the public safety and security risks of doing so are huge.
In spite of spiralling crime levels, there is scant evidence that government considers the proper resourcing of the Rica process to be a priority. Some of the weaknesses of Rica may well be addressed by an upcoming Cybercrimes and Cybersecurity Bill; however, if the bill is going to make the Rica judge responsible for metadata requests, without attending to the lack of resourcing of the judge’s office, then disaster looms. Furthermore, the bill seeks to compel communication service providers to store internet browsing information in addition to call-related metadata, which will compound the privacy violations without necessarily addressing the very real practical problems that made this provision in Rica unworkable in the first place. Even more worrying, though, are the uses the mass surveillance capacities of the state are being put to.
– Duncan is an author, professor and head of the department of journalism, film and television at the University of Johannesburg