Jacques Pauw’s book, “The Presidents Keepers”, shows how recent events illustrate the dire need to review security legislation. It illustrates how South Africa’s intelligence agencies not only failed to identify and prevent State Capture on a grand scale, but also actively collaborated in setting up a
parallel security agency (the so-called PAN project), ostensibly of the State Security Agency’s (SSA) own accord and without any political approval.
A review of legislation relating to communication surveillance is required. The Regulation of Interception of Communication and Provision of Communication-Related Information Act (RICA)
contains deficiencies with regard to:
- The inherent risk of an ex parte application by the SSA when applying to a designated judge tasked with considering applications to monitor targeted individuals; and
- The lack of experts on a panel which ought to consider applications with reference to the merits of an application and the use of certain equipment when monitoring targeted individuals.
In this regard, the use of user notification should be considered as well as the assistance of an individual representing the public, who together with the applying authority, should assist the designated judge in considering the merits of the application.
The use of indiscriminate mass surveillance – surveillance that targets people not suspected of criminality, is concerning. Particularly so because very little, if any, legislation exists to regulate the use of mass surveillance. Mass surveillance network analysis conducted at the National Communications
Centre (NCC), hacking and location tracking capabilities are used by the SSA with minimal oversight or control.
To make matters worse, the NCC, unlike the Office for Interception Centres (OIC) which deals with targeted interception, has not been established in terms of any legislation.
The reason offered by the security agencies for this unbridled power, indicate that they require this freedom to forecast threats to national security and should therefore have the ability to have unregulated access to communications between someone inside and outside of South Africa (so-called foreign signals intelligence).
In keeping with recent international development, security agencies should apply for mass surveillance warrants. The rule that all metadata (data about communications between individuals) automatically be stored in bulk for 3-5 years, should also be scrapped.
A review of the Intelligence Oversight Act is required to provide for the true independence of the Inspector-General for Intelligence (IGI). The recent High Court application by the Inspector-General indicates the inappropriate application of authority and intimidation that a rogue Director-General (DG) of Intelligence can apply. In this instance, the D-G targeted the IGI by unilaterally withdrawing his security clearance.
Due to time limits, it is not possible to motivate all legislative amendments required save to state that the present situation cannot be allowed to prevail.
I thank you.