In October 2008 Parliament shelved two Bills that could have a severely negative impact on the free flow of information in this country. These included the National Strategic Intelligence Amendment Bill and the Protection of Information Bill.
The latter needs no discussion. It was again shelved in September this year, pending further discussion by the ANC following public outrage at its gross violation of the Constitution. But the other shelved Bill is less well known, even though it will go a long way towards allowing the state to invade the privacy of South African citizens. It proposes regulations for the national communications centre, which houses the state’s bulk interception facilities, which can be used to monitor thousands of conversations simultaneously.
The centre’s mandate is supposedly the bulk monitoring of international and cross-border communication for national security purposes.
In 2005 the inspector general of intelligence came across large-scale illegal tapping by the centre. This was during the course of an investigation into the “hoax email” saga.
The inspector general found that targeted interception of South African citizens’ communications had occurred — a violation of the centre’s mandate. Hoax emails had also been generated, apparently to stir mistrust in political circles. The then-executive director of the centre, Billy Masetlha, was subsequently axed.
At the moment there is no legislation governing the centre. But the Intelligence Amendment Bill sets the stage for continued abuse of the centre’s facilities. The Bill clearly states that the centre’s sole purpose is to “collect and analyse foreign signal intelligence”. It goes on to define “any communication that emanates from outside the borders of the republic, or passes through or ends in the republic” as part of foreign signal intelligence. This leaves a gaping loophole for the interception of the communication of South African citizens. In effect it bypasses Rica — the Regulation of Interception of Communications and Provision of Communication-related Information Act — which regulates the lawful interception of private communications within the country’s borders.
The Bill also empowers the minister of intelligence to sign off on centre activities, “in particular to authorise each target or communication which is to be monitored or intercepted”. Thus, permission for interception will not be granted by an objective, designated judge, as in the case of Rica.
Although the office of the inspector general remains the overseer of the centre’s activities, decisions on interceptions will essentially be removed from the legislature. The message is clear: The secret state is surely, quietly tightening the screws.
Read the first half of the editorial “Mazibuko no laughing matter“