South Africa: Your Cellphone Records and the Law - the Legal Loophole That Lets State Spying Run Rampant
25 May 2018
There are laws in place preventing intelligence services from intercepting communications unless a specially designated judge scrutinises each case. But, on estimate, 95% of court orders related to telecoms interception are never even seen by this judge, thanks to a "legal loophole" that may prove extremely hard to close.
Telecoms surveillance in South Africa is governed by Rica - the Regulation of Interception of Communications and Provision of Communication-Related Information Act. The law clearly distinguishes between two categories of information that can be intercepted. The first is communications content - whatever is said in a phone conversation, and written in texts, emails or private social media messages.
Intelligence services can only get hold of communications content if they apply for court order to a specially designated judge assigned in terms of Rica. The judge not only personally reviews each application, but must also issue an annual report of his or her activities to the Joint Standing Committee on Intelligence, or JSCI. The committee is responsible for the parliamentary oversight of intelligence services in South Africa.