The amaBhungane Centre for Investigative Journalism has launched a constitutional challenge to the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) and unregulated bulk interception.
RICA serves as the basis for the lawful interception of citizens’ communications, but we contend that there are fundamental flaws in RICA and that various sections are inconsistent with the Constitution.
We are going to court, starting with the high court in Pretoria, so as to strengthen the protection of journalists and the public against the abuse of this arguably necessary, but intrusive legislation.
The action is taken under our advocacy mandate, which is to help secure the information rights investigative journalists need.
Our complaints fall into two categories: firstly, the areas where RICA regulates surveillance, but does so inadequately; and, secondly, where it fails to regulate certain monitoring activities at all.
Where RICA does regulate, there are five main constitutional flaws:
- The target of the interception order is never informed of the order – even after the period of interception has ended and any investigation has been concluded.
- RICA is silent about the procedure state officials should follow when examining, copying, sharing, storing, etc, the intercepted data. Where the interception is found to be irrelevant or of no probative value, there is no certifiable procedure for the data to be destroyed.
- RICA requires that private companies must store certain information but it does not provide for any oversight mechanisms.
- There are deficiencies in the regime for oversight by the retired judge nominated to rule on interception applications.
- RICA fails adequately to protect those targets of interception that have a legal duty to protect the confidentiality of communications and sources, such as lawyers and journalists.
There is a second category of problems with RICA in that it does not regulate certain kinds of interception at all.
- RICA does not cater for the regulation of so-called “bulk interception”, which uses computers to scan massive flows of data, rather than targeting identified persons.
- RICA does not provide any approval mechanism regarding interception or surveillance of so-called “foreign signals”, which may in fact ensnare people in South Africa.
The intelligence community presently monitors such communication without a warrant.
Interception remains a potentially powerful tool in the fight against crime.
But we argue that because it inevitably limits fundamental rights and may be chill the legitimate rights of journalistic and others, it is essential that its implementation is subject to proper checks and balances.
The founding papers were served on the ministers of justice, police, state security and communications, as well as other interested parties, last week.
- And an article on the background to the challenge HERE.