New South African Bills Pose Threat to Privacy, Enable Mass Surveillance

The South African Parliament is currently evaluating two surveillance bills, RICA (Regulation of Interception of Communications and Provision of Communication-Related Information) and Gilab (General Intelligence Laws Amendment Bill), which have sparked substantial privacy concerns among citizens. Despite a 2021 Constitutional Court ruling aimed at enhancing privacy protections and a subsequent Rica amendment bill, the Department of Justice’s minimalistic approach has allowed security officials to subtly subvert the process, potentially enabling unrestrained, secret mass surveillance of all private communications in the name of national security. 

Two surveillance bills, Rica and Gilab, are currently under scrutiny in the South African Parliament, raising significant privacy concerns. If passed, these laws would enable the government to conduct mass surveillance on all citizens’ private communications, ostensibly for national security purposes. This comes despite a 2021 Constitutional Court ruling that ordered specific changes to Rica, aimed at safeguarding citizens from unwarranted government surveillance. 

However, the Department of Justice’s efforts to enforce these human rights have been minimalistic, providing an opportunity for South Africa’s secrecy-focused security officials to subtly undermine the process. The General Intelligence Laws Amendment Bill (Gilab), the second bill before Parliament, was initially intended to address corruption and law disregard within the State Security Agency (SSA). However, it appears that intelligence agencies have used the Rica Constitutional Court judgment to craft their own minimalist surveillance laws through Gilab, exploiting gaps in the legislation.

The Constitutional Court had declared the SSA’s mass surveillance facility, the National Communications Centre (NCC), unlawful and ordered its closure. The Rica amendment bill presented the Department of Justice with a prime opportunity to define mass surveillance and establish governing regulations. However, the department allowed intelligence agencies, despite their history of illegal interception and other issues, to self-regulate, enabling them to create vague clauses within Gilab that could potentially allow unrestrained surveillance without independent oversight.

The proposed legislation does not adequately address the complexities and potential abuses of bulk surveillance, especially in comparison to targeted lawful interception (LI). Bulk surveillance can occur without the knowledge or technical assistance of the service provider, providing the state with secret, direct access to private communications. The lack of both legal and technical protections in bulk surveillance, coupled with the potential for misuse of direct access surveillance practices, underscores the urgent need for comprehensive and specific regulation of mass surveillance in South African law to protect citizens from secret and illegal interception of their communications.