South Africa's Surveillance Reform Stumbles with Inadequate Bulk Interception Bill

In the wake of a landmark Constitutional Court ruling in South Africa, the privacy rights of citizens hang in the balance as the government attempts to navigate the choppy waters of surveillance reform. The court's 2021 decision made it clear: bulk interception of electronic signals by the State Security Agency (SSA) was unlawful in the absence of properly drafted legislation regulating this invasive practice. Yet, the response from the presidency—a draft known as the General Intelligence Laws Amendment Bill—has been met with significant scrutiny and concern.

The bill aimed to fill the legal void around bulk surveillance—an activity where intelligence agencies collect vast amounts of electronic signals data, often without targeted suspicion, in pursuit of national security. This sweeping collection has ignited fears of infringement on individual privacy. Revelations by whistleblowers like Edward Snowden have shown that without strict oversight, such practices can and have been used to surveil citizens and international allies in manners that stretch beyond the intended remit of these agencies.

In South Africa, the unauthorized surveillance saga precedes the Snowden case. It stretches back to at least 2005, when it surfaced that agents from the National Intelligence Agency, which was supposed to concentrate on external threats, employed bulk interception to spy domestically, targeting key political figures and business leaders. This abuse was enabled by the lack of legal frameworks dictating the use of these capabilities. Calls for a governing law to mitigate such abuses were historically dismissed under the guise that existing legislation sufficed—a position the Constitutional Court would deem insufficient.

The introduced amendment bill, championed as a solution, instead has been criticized for its lax approach to the very issues it aims to redress. Although it mandates that the National Communication Centre—tasked with managing signal intelligence—acquire approval from a judicially appointed retired judge and two experts before proceeding with bulk interception activities, the bill stops short of clarity. It fails to specify the decisive criteria for the judge, treading perilously close to potential executive influence, the very concern regulations should alleviate.

Beyond the issue of judicial oversight, the bill also lacks detailed guidelines on the procedures for authorization, selection, use, storage, and eventual destruction of intercepted materials. It does not define the duration limits or delineate the supervisory mechanisms by an independent authority, nor does it outline compliance and review measures post-surveillance, as international benchmarks recommend.

A robust legal framework should impose clear, well-articulated limits to safeguard personal privacy against state overreach while ensuring national security. End-to-end protections as suggested by authorities like the European Court of Human Rights provide an essential balance between the state's security interests and individual rights, one the current bill does not sufficiently achieve.

With a call for public comment by 15 February 2024, there is an opportunity for civil society and privacy advocates to challenge and demand a more comprehensive codification of checks and balances that align with both the Constitutional Court’s mandates and global human rights standards. The state's commitment to reform and to rebuilding trust with its citizens is on trial, and the outcome of this legislative process will have lasting implications for South Africa's democratic fiber and its respect for the rule of law.