RICA challenge: R2K and PI joins as friends of the court

Organisations say there is mounting evidence that state’s surveillance powers have been abused

R2K and PI joins amaBhungane RICA challenge as amicus curiae

7 August 2018

The Right2Know Campaign and Privacy International, represented by the Legal Resources Centre, have applied to be admitted as friends of the court in an ongoing legal challenge to South Africa’s surveillance law, RICA1, in the High Court in Pretoria.

Our intervention comes on the back of mounting evidence that the South African state’s surveillance powers have been abused, and so-called “checks & balances” in RICA have failed to protect citizens’ constitutional right to privacy.

Among our core arguments are:

- That people have a right to be notified when their communications have been intercepted so that they can take action when they believe their privacy has been unlawfully breached. Currently RICA prevents such notification, unlike equivalent laws in other countries, which require a targeted person to be notified that they had been spied on after an appropriate lapse of time.

- That RICA’s requirement that telecommunication users’ metadata – information about when, where, how and with whom they communicate – be stored for years is a massive and systemic violation of the rights of all South Africans who use digital communication. In this case, the state has asserted that it has the power to mandate telecommunications providers to store metadata about South Africans’ phone calls, SMSs, emails, and internet activity for up to five years. This includes the location from which those communications were made, and the subject lines of emails which often indicate the content of the message.

- That mass surveillance is inherently unconstitutional2.

The bottom line is that RICA has violated basic rights and is in desperate need of being re-drafted and brought in line with our Constitution. We believe the amaBhungane challenge represents a critical opportunity to protect millions of people’s right to privacy and to help bring an end to surveillance abuses.

1. The Regulation of Interception of Communications and Provisions of Communication-Related Information Act 70 of 2002

2. Mass surveillance refers to practices of collecting information about a wide range of people, most of whom are not of any legitimate interest to the government, such as being reasonably suspected of having committed or being likely to commit a crime. In the amaBhungane case, the State Security Agency has asserted its right to intercept internet traffic in bulk as it transits undersea cables.

Issued by Busi Mtabane, Right2Know Communicator, 7 August 2018