The General Intelligence Laws Amendment Bill (GILA), published in the Government Gazette late in 2011, has raised a few eyebrows as the Department of State Security tries to consolidate the various State security structures and amalgamate various State security agencies into a monolithic regime.
The restructuring of National Intelligence agencies has played a headline role in South Africa, culminating in the Presidential reform that abolished the National Intelligence Agency and the South African Secret Service, and subsequently replaced these agencies with a government departmental structure dubbed as the State Security Agency (SSA). It is important to remember that the post-apartheid intelligence structure focused on balancing power between two bodies with the aim of allaying fears of a single intelligence unit that could compromise an individual’s constitutional right to privacy.
The SSA then ran various fragmented structures of national security service agencies and bodies and the efficiency levels of these bodies were ultimately negatively affected due to duplication in various other constitutive pieces of legislation.
GILA now seeks to amend the National Strategic Intelligence Act 39 of 1994 (NSIA), to enable any State department to request the South African National Academy of Intelligence to establish a 'vetting field work unit' to assist National Intelligence structures such as the South African Police Service and National Defence Force in gathering information. There have been concerns expressed that these provisions can be used to appoint the 'vetting field work unit' such as the National Communications Centre (NCC). The NCC has notoriously operated as the South African unregulated eyes and ears with the extensive technical capabilities in intercepting and analysing large volumes voice and internet traffic, including individual phones and emails.
Also of concern is the proposed amendment to the NSIA, which provides that the collection and analysis is performed in 'accordance with the intelligence priorities of the Republic'. The broad nature of this provision may be subject to abuse similar to the abuses in the previous political dispensation, where intelligence 'priorities' were often classified as a broad justification for ulterior motives.
GILA also amends the Intelligence Services Act 65 of 2002 that carves out the duties and functions of the South African National Academy of Intelligence. This agency is required to collect and analyse so-called 'foreign signals intelligence' subject to further regulations by the relevant Minister.
The wide umbrella term of what constitutes 'foreign signal intelligence' includes the interception of electromagnetic, acoustic and other signals, as well as cross-communication emanating from outside South Africa. This would include the interception of modern social networking sites such as Facebook and Twitter. The most significant concern when GILA comes into force is whether it will ultimately be possible to intercept 'foreign signal intelligence' without a warrant obtained from a court. If these communications are monitored by vetting field work units with the technological capability like the NCC without any due process being followed to obtain the necessary warrants, serious consideration will have to be given as to whether GILA can be considered to justifiably limit an individual's constitutional right to privacy.
Written by Tayyibah Suliman, Senior Associate and Kellie-Kirsty Hennessy, Candidate Attorney, Technology, Media and Telecommunications practice, Cliffe Dekker Hofmeyr