Johannesburg – Civil
society group Right2Know is alleging that law enforcement is using a
legislative loophole to force SA’s cellular operators hand over sensitive
information about clients.
In a statement issued
on Tuesday, the group said it had issued
applications in terms of the Promotion of Access to Information Act
requesting information on how often Cell C, MTN, Telkom and Vodacom hand over call
information.
R2K has, for
some time now, been convinced that state agencies are spying on South Africans.
However, it has not had proof of such as taping into phones without a warrant
is illegal, and there are no stats available to back up its assertions.
In the
statement, R2K cites a recent Daily Maverick report, which exposes a loophole.
It says Daily Maverick reported on a legal loophole that
allows magistrates to authorise thousands of 'surveillance operations' every
year, forcing telecommunications companies such as MTN, Vodacom, Telkom and
Cell C to hand over sensitive information about their customers’ communications
- their call records.
This, it says,
bypasses the RICA law; the Regulation of Interception of Communications and
Provision of Communication-Related Information Act. This law means that
everyone must register their SIM card, but also places strict rules on when,
and by whom, cellphone records can be accessed.
R2K says, “we
don't know how often this loophole is used, but we need to know. This is why
R2K has filed requests for information using the Promotion of Access to
Information Act (PAIA) asking all major telecoms companies to disclose how
often the loophole is used. PAIA states that a request for information must get
a response within 30 days.”
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R2K notes: “While
there is growing awareness on RICA's surveillance protocols, which states that
someone’s communication may only be intercepted if authorised by a specially
appointed judge (the “designated judge”), few people are aware that
surveillance is also being authorised outside RICA – possibly at a far higher
rate.”
R2K argues that
the loophole is in s205 of the Criminal Procedures Act, which allows law enforcement
officials to bypass the RICA judge and approach any magistrate
for a warrant that forces a telecoms company to give over a customer’s call
records and metadata if that person is under investigation.
“However, that
person is never notified, even if the investigation is dropped or if they are
found to be innocent. A person's call records contain incredibly sensitive
information, and needs high levels of protection to enforce the constitutional
right to privacy.”
The Daily
Maverick article quoted the Ministry of Justice and Correctional Services as
saying it could not indicate how many orders, under the Criminal Procedure Act,
were granted. However, the Ministry did say it was reworking RICA.
It noted SA only
has one RICA judge, in Pretoria, which the article argues is why the CPA is
used, as it bypasses RICA.
What has R2K
asked for?
R2K has filed PAIA requests with MTN, Telkom, Vodacom and Cell C, asking them
to disclose statistics of how many warrants they have received via s205 of the
Criminal Procedures Act, for the years 2015 to 2017. These requests do not ask
for any sensitive information or customer information, just how many times a
year the network providers have been forced to hand over customer information.
It notes these
requests do not ask for information about warrants that have been issued by the
RICA judge, as RICA’s secrecy provisions forbid the telecoms companies from
disclosing such information.
“
We
call on MTN, Vodacom, Telkom and Cell C to take their customers into their
confidence, and reveal how often sensitive data is handed over to government
agencies.”
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