AP Photo/Marcio Jose Sanchez, File

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.”

Read also: US government to secretly spy on citizens

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.”