Another View: Time to oversee the officials who spy on us
There don't appear to be enough safeguards to prevent abuse
SOUTH Africa is shocked by a recent report alleging that rogue police are tapping phones illegally. The Regulation of Interception of Communications and Provision of Communication-related Act criminalises the interception of communications without the permission of a retired judge.
But the police and the inspector-general of intelligence's responses to the story seem to suggest that the legal route has sufficient safeguards to prevent abuse. Is this the case?
Recently, the Sunday Times revealed that one of its journalists, Mzilikazi wa Afrika, had had his phone calls lawfully intercepted by the Hawks. The judge apparently granted an interception direction to assist an investigation into his possession of a resignation letter by Mpumalanga premier David Mabuza, which turned out to be fraudulent. The prosecutor subsequently decided Wa Afrika had no case to answer.
It is difficult not to arrive at the conclusion that the investigation was designed to intimidate Wa Afrika as a journalist, and the police's assurances to the contrary ring hollow. It can also be surmised that the designated judge fell for the Hawks' tall story about his possible involvement in a serious crime. What went wrong?
Communications surveillance is subject to judicial, legislative and executive oversight, but the missing link is public oversight. Too little information is provided for the public to monitor whether the act is achieving its intended results: to fight crime and genuine threats to national security.
In the US - not a country known for its respect for civil liberties in the wake of the September 11 attacks - annual reports on interception directions include information on the number of directions granted; the offences for which orders were granted; a summary of types of interception orders; the average costs per order; the types of surveillance used, and information about the resulting arrests and convictions.
This allows citizens to monitor (to an extent) whether surveillance is actually reducing the number of crimes it was intended for, or whether the authorities are merely on fishing expeditions. They can also monitor if public resources are being used appropriately.
South Africa's reports, by contrast, are threadbare. Reports from 2006 to 2008 contained statistics on the number of interception orders granted, and nothing more. To his credit, the latest designated judge issued a more detailed report, but it still falls far short of the reporting obligations needed for effective public oversight.
For instance, insufficient information is provided to understand why there has been a 120% increase in the number of interception directions between 2009 and 2010 - and a steady growth since 2006.
But the South African media and civil society have not been vigorous enough in demanding information they are well within their rights to have.
In the US system, in order to protect the rights of the people under surveillance, within 90 days of the termination of the court order the judge must ensure that the person whose communications were intercepted is informed about the order. No such provision exists in South Africa, which makes it impossible to take the judge's decision on review.
Wa Afrika was lucky. The interception order came to light because of his paper's support. Most people who are placed under surveillance will simply never know.
There are other features of the law that require examination. The US law contains what watchdog Privacy International maintains is a higher standard for the issuing of interception orders than South Africa's.
In some countries, independent commissions oversee communications surveillance, and make public reports. Yet in South Africa, the parliamentary reports are written by the judge who took the decisions, which is not healthy. And the inspector-general's office, which should provide an additional oversight, is underresourced and lacks operational independence.
The Democratic Alliance's call for a commission of inquiry into illegal phone tapping should be supported. But the loopholes that make even "lawful" interception activities susceptible to abuse also need to be reviewed.
South Africa has just commemorated "Black Wednesday" when newspapers and organisations were banned by the apartheid regime. These bannings were possible because the regime placed journalists and activists under surveillance. Such a surveillance culture must not be allowed to develop again.
Yet, by and large, South Africans have chosen to trust the new system blindly. Now there is reason to believe that this trust has been misplaced.