The police and the country's spies are increasingly asking the courts for permission to intercept private electronic communications, including telephone calls, a report to Parliament shows.
During the 2013/2014 financial year, the police and State Security Agency (SSA) lodged a total of 616 applications to intercept private electronic communication. In the 2014/2015 financial year, this increased to 734. By August 2015, during the 2015/2016 financial year, and seven months before the end of the reporting year, it had already jumped to 1,030 applications.
By August 2015, during the 2015/2016 financial year, and seven months before the end of the reporting year, it had already jumped to 1,030 applications.
This is according to a report by Judge Yvonne Mokgoro tabled in Parliament last week. Mokgoro is the designated judge tasked with considering interception applications in terms of the Regulation of Interception of Communication Act (Rica). The report covers the period up until October 2015 — the last available reporting period.
The report was added as an addendum to the annual report of Parliament's joint standing committee on intelligence (JSCI), a closed committee charged with oversight of South Africa's intelligence services. Unlike all other parliamentary committees, its meetings aren't open to the public and its reports are largely top secret. MPs that serve on the committee also undergo security clearance and are subject to confidentiality agreements.
Mokgoro, in the report, disputes the success of electronic interceptions and also warns of the likelihood of it being abused. She argues it is difficult to determine how successful electronic interception is in the fight against crime and that investigations do not only depend on these orders being granted.
Mokgoro, in the report, disputes the success of electronic interceptions and also warns of the likelihood of it being abused.
"That the system of lawful interception of private communications may be open to abuse is a likelihood that we should not be blind to. It could be used for expediency where the legal application process may be overly cumbersome. Abuse in any form cannot be tolerated," Mokgoro writes.
She adds that interception is not an investigative method "of first resort" and should only be employed once all other avenues have been exhausted or proven ineffective.
Mokgoro says there is a "continued public perception" that some law-enforcement agencies, related institutions and individuals use these "intrusive interception methods" to advance their own interests with no regard to Rica or the Constitution. "The media, in particular the social networks, are inundated with reports, allegations and comments about manipulation and abuse of interception by officials and individuals," she says.
Mokgoro says there is a "continued public perception" that some law-enforcement agencies, related institutions and individuals use these "intrusive interception methods" to advance their own interests.
This includes the obtaining of information without the designated judge's knowledge, the acquisition of cellphone billing details and ownership records without a proper court order and the obtaining of text messages and billing information for private use through contacts at crime intelligence or other agencies.
Mokgoro says many of these challenges won't be resolved by legislative amendments, but only when law-enforcement agencies understand what crime intelligence gathering in a democratic society entails. She adds that this can be done by improving training and skills.
South Africa's communication legislation, including Rica, has been criticised because of the levels of intrusiveness it permits, with civil society watchdogs saying South Africans have given up a large chunk of their privacy thanks to these laws. A report by the United Nations Human Rights Committee earlier this year also attacked Rica, saying the state unnecessarily encroaches on the right to privacy.