Intrusive Measures Employed by the SA Intelligence Service are Violating the Right to Privacy
Shireen Mukadam & Tamlynne Meyer, Junior Researcher & Research Intern, Corruption and Governance Division, ISS Cape Town
Amid concerns about the use of intelligence for political purposes in South Africa and the violation of citizens’ right to privacy, parliament is currently reviewing the new General Intelligence Laws Amendment Bill (GILAB). The Bill was introduced in November 2011 by the Minister of State Security and published in the Government Gazette. Through this Bill, the Department of State Security attempts to consolidate the various state security agency structures and amalgamate the various agencies. Parliament’s ad hoc committee on GILAB is now responsible for reviewing the Bill and has allowed for public hearings and submissions. A fundamental concern raised in the submissions is the failure to address the difficulty in balancing national security and the right to privacy.
Intelligence services across the globe have a fundamental role in maintaining national security. In addition, they have special powers allowing them to access information through intrusive measures. The abuse of this power and the use of intrusive measures have the potential to violate the right to privacy. This right is a fundamental human right protected in section fourteen of the Constitution of the Republic of South Africa, which states that:
Everyone has the right to privacy, which includes the right not to have
a) their person or home searched
b) their property
searched
c) their
possessions seized
d) the privacy of
their communication infringed.
According to Section 231 (5) of the Constitution, South Africa is
bound by international law unless it is inconsistent with the Constitution or
an Act of Parliament. The right to privacy is furthermore entrenched in
international law in article 12 of the UN Declaration on Human Rights and
article 17 of the International Covenant on Civil and Political Rights. The SA Constitution
states that laws of general application may limit the right to privacy. The
Regulation of Interception of Communication and Provisions of
Communication-Related Act (RICA) consents to the interception of communication
and the searching of premises by designated bodies only with prior judicial authorisation.
How exactly are the
intelligence services able to infringe upon the right to privacy? Intrusive
measures employed by the intelligence services such as electronic and physical
surveillance, interception of communication, recruitment of an informant and
infiltration of an organisation, are not legislated and therefore
unconstitutional. The interception of ‘incidental information’, which is
gathered through the interception of communication, is also not legislated. The
use of these intrusive measures suggests that the intelligence services can
eavesdrop on people’s telephonic conversations (locally and abroad), e-mails,
Skype calls and Facebook. The expansion in modern technology and data
surveillance allows for the daily activities, communication and transactions of
people to be routinely captured and digitally stored, often without their
knowledge. The intelligence services have thus benefited from sophisticated
technological systems and are thereby able to employ intrusive measures and
intercept communication.
Governments have conventionally compiled and accessed databases for
information about known ‘targets’, but databases are increasingly being used to
search for any inconsistencies or patterns of wrongdoing, including those containing
law-abiding citizens. On this account, incorrect or unreliable data may be used
inappropriately to make judgments on ordinary people. People now have to be particularly
careful of what they say or do as it might be misinterpreted. The value of
privacy has therefore reached another dimension as a result of modern
technology. Particular risks are thus posed by intrusive methods, especially
when information is collected for intelligence purposes.
The right to privacy entails that individuals have control over
their personal information, and their personal activities should be free from
unwanted intrusion, which allows for secret spying. Should any form of
intrusion occur, not only is their human and democratic right to privacy
violated, but so are other fundamental rights, including freedom of expression,
association, political participation and dignity. It is the protection and
safeguarding of these rights that differentiates a constitutional democracy
from a police state.
Former Minister of Intelligence Services Ronnie Kasrils commissioned
the Ministerial Review Commission on Intelligence to review intelligence
legislation. The commission highlighted the fact that the intelligence services
infringe upon people’s right to privacy through the use of unlegislated
intrusive measures. The report was commissioned so that improvements could be
made to the intelligence legislation. The current GILAB has failed to take into
account the recommendations of this commission and views it as a no status
document, although it is in the public domain.
The Institute for Security Studies (ISS), together with other public
submissions to the Bill, is of the view that the legislation needs to be
reviewed to ensure that the rights of South Africans to privacy and national security
are simultaneously maintained.
It becomes apparent that South Africa is confronted with an anomaly
in that the intelligence services are required to protect democracy and ensure
national security. Excessive use of their powers will erode civil liberties
that are the essence of democracy. Jennifer Chandler, Assistant Professor at
the University of Ottawa, states in Privacy
versus National Security: Clarifying the Trade-off that the common view is
to strike a balance between national security and privacy. This, however, is not
easy given that national security and individual privacy are both essential
aspects of a democracy and protected by the constitution. She argues that there
is a tendency to easily sacrifice rights and freedoms, and we should rather ask
if there are less intrusive methods to achieve security. Does the invasion of
privacy actually deliver any security? Are the gains in security worth the
cost, including privacy costs?
If
an individual is not under suspicion of having committed any criminal act, the
intelligence services have no right to access his or her private records. Every
effort should therefore be made to ensure that the intelligence services adhere
to the provisions in the Constitution and are bound by the Constitution. It becomes
imperative that the intelligence services are subject to democratic control, as
a failure thereof can threaten the very rights fought for by South Africans and
the consolidation of democracy.
