State agencies have a licence to spy on you

But extent impossible to gauge because of lack of accountability

ALTHOUGH South African lawenforcement agencies obtained just 826 court orders to intercept the communications of suspected “criminals” between 2006 and 2010, government agencies intercepted a staggering three million calls and e-mails during that time.

This means that, over the threeyear period, about 3 600 interceptions were made for every order granted and government agencies across the police, intelligence service and prosecuting cluster gained access to 80 000 conversations every month.

Confirmation of the three million interceptions is contained in a briefing by the Office of Interception Centres to the parliamentary joint standing committee on intelligence. The figure for the past three years could be higher, but the details have not yet been made public.

Professor Jane Duncan from Rhodes University, who has been investigating the interception of communications, said the statistics proved that state agencies often went on wide “fishing expeditions” when applying for interception orders.

Duncan questioned why reports to the intelligence committee were not more detailed as a means to explain the huge increase in the number of applications by police crime intelligence.

The information provided by designated judges who authorise these interceptions, shows that:

The embattled crime intelligence unit of the South African Police Service had a 231% spike in interception applications between 2009 and 2010; and

The unit applied for 325 interception directives and was granted 300, against 98 the previous year, of which 84 were approved.

Experts fear that the extent of irregular spying activities is al- most impossible to gauge because of the lack of accountability.

Duncan said judges’ reports to the parliamentary committee had to be much more detailed.

“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 [detailed] information,” said Duncan.

“Most of this information is not provided in the South African system, which means that, in terms of information access issues, the US system is, ironically, more progressive than [ours].”

South Africans would not know if the measures led to a decrease in crime or were effective in securing the country — there was a “constitutionally indefensible blackout” on crucial information relating to these orders, Duncan said.

It is known that government spooks have access to phone and bank records, which they use to profile suspects. Social media offers them a wide range of personal information, such as photographs, locations and lifestyles.

Cellphone companies are legally required to assist when law enforcement agencies ask to listen in on calls. The three major networks said they assisted only when a lawful order was presented. None would provide details on the number received.

MTN spokesman Bridget Bhengu said: “MTN does not have any ‘back doors’ into its system”. She added that eavesdropping could only be done in accordance with the Regulation of Interception of Communications and Provision of Communication-related Information Act (Rica).

A report published in December 2012 by Professor Hussein Solomon from the University of the Free State’s politics department claims that intelligence structures had allowed themselves to be drawn into political battles and the struggle for power in different factions of the ANC.

“The greater the process of politicisation, the more this undermines the professionalism and effectiveness of the intelligence community. The very politicisa- tion of the intelligence services serves to undermine their effectiveness in countering the very real external threats that the country has to confront,” he said.

Duncan said the police’s crime intelligence unit topped the list of agencies applying for interceptions between 2006 and 2010 with a total 519 requests, of which 480 had been approved.

The National Intelligence Agency made 270 applications in the same period and had 254 approved; and

The National Prosecuting Authority made just two applications between 2009 and 2010, of which both were granted. The South African Secret Service obtained orders for 13 out of 14 applications and the Directorate of Special Operations (the former Scorpions) 23 out of 24.

Criminal lawyer William Booth said although the system could easily be abused, any person had the right to challenge the legality of spy agencies snooping.

“You can argue that this infringes on your right to privacy. While that right is not absolute, it is also something that has to be protected. The issue is really that the judge who signs the order must be sure the facts point to possible criminal activity and that the request is legitimate.”

Duncan said it was time to ask tough questions. “I’m afraid we’ve been our own worst enemies when it comes to the security cluster. We’ve simply accepted arguments that the security services, by their very nature, are secretive. Until we stand up and demand what should rightfully be ours, secrecy will continue and, most likely, so will abuses.”