SUBMISSION ON THE GENERAL INTELLIGENCE LAW AMENDMENT BILL [B25 - 2011]

Laurie Nathan

16 March 2012

Prepared for the Ad Hoc Committee on General Intelligence Laws Amendment Bill

1. Introduction

The parliamentary Ad Hoc Committee on General Intelligence Laws Amendment Bill has invited public submissions on the General Intelligence Laws Amendment Bill (hereafter "GILAB"). This submission covers the following topics: interception of communication; intrusive measures; the counter-intelligence mandate; and the domestic intelligence mandate.

The submission draws on the report of the Ministerial Review Commission on Intelligence, which sat from 2006 to 2008.[1] The author was a member of the Commission.

2. Interception of Communication

2.1  Background on the National Communications Centre

In 2008 the Minister for Intelligence Services introduced the National Strategic Intelligence Amendment Bill [B 38-2008], which aimed to regulate the activities of the National Communications Centre (NCC). The NCC is the government's facility for intercepting communication through the monitoring and collection of electronic signals. It monitors the signals of ‘targets', being known persons or organisations that have been identified for intelligence monitoring. It also undertakes ‘environmental scanning', which entails random monitoring of signals through the NCC's bulk monitoring capability.

The Ministerial Review Commission found that the NCC's eavesdropping activities were in violation of the Constitution.[2] The Constitution provides that "everyone has the right to privacy, which includes the right not to have ... the privacy of their communications infringed".[3] The Constitution states that the rights in the Bill of Rights may only be limited by law of general application.[4] The NCC intercepts communication and thereby infringes the right to privacy but it was not established, and it is not governed, by legislation. It has therefore been acting unconstitutionally.

The Regulation of Interception of Communications and Provision of Communication-Related Information Act No. 70 of 2002 (hereafter "RICA") prohibits the interception of communication without judicial authorisation. The departmental policy on the NCC, which the Commission reviewed in 2007, made no reference to RICA and ignored the legal obligation to obtain the approval of a judge before intercepting communication.

The Inspector-General of Intelligence raised with the Commission the following concerns about the NCC: there was no legislative mandate for the NCC and electronic collection of signals; the regulatory framework governing the NCC's special powers was incomplete; bulk interceptions were not usually subject to judicial control; and there was a lack of internal compliance mechanisms for operational activities.[5] The Inspector-General called for a statutory mandate and proper regulations regarding the NCC's activities in order to minimise the danger of possible abuse and illegality.[6]

The National Strategic Intelligence Amendment Bill [B 38-2008] was intended to address these concerns and provide the necessary legislative framework for the NCC and its activities. The Bill was withdrawn from Parliament, however. In its place, GILAB covers the topic of foreign signals intelligence.

2.2 GILAB provisions on foreign signals intelligence

GILAB contains the following provisions on foreign signals intelligence:

§  The functions of the new State Security Agency (SSA) will include the following: "to collect and analyse foreign signals intelligence in a manner prescribed under section 37(1)(sC) of the Intelligence Services Act, 2002 ... in accordance with the intelligence priorities of the Republic" (section 2(h) of GILAB).

§  The term ‘foreign signals intelligence' is defined to mean "intelligence derived from the interception of electromagnetic, acoustic and other signals, including the equipment that produces such signals, and includes any communication that emanates from outside the borders of the Republic, or passes through or ends in the Republic" (section 1(c) of GILAB).

§  The Minister for State Security is empowered to make regulations regarding the collection and analysis of foreign signals intelligence (section 49(f) of GILAB).

GILAB does not refer to the NCC. Presumably, the NCC and its functions are being incorporated into the SSA.

The minimal provisions in GILAB do not adequately address the concerns regarding the NCC's activities. A number of specific problems are discussed below.

2.3 Infringing the right to privacy

The constitutional right to privacy is held by all persons in South Africa.[7] The interception of foreign signals would infringe this right where the communication ends with any person in South Africa. The interception would also infringe the right to privacy where the communication is sent by a South African who is outside the country, since citizens do not forfeit their rights in relation to the state when they are abroad.

In addition, the Constitution declares that the Republic is bound by international agreements that were binding on South Africa when the Constitution took effect,[8] and that customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.[9]

Article 12 of the Universal Declaration of Human Rights states that "no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence... Everyone has the right to the protection of the law against such interference...".[10] This right is repeated in article 17 of the International Covenant on Civil and Political Rights, to which South Africa is a signatory.[11]

In short, the right to privacy is a universal human right that is protected by the Constitution and applies as much to people outside the country as to people inside.

The Constitutional Court has emphasised the necessity for adequate safeguards where legislation permits infringements of the right to privacy.[12] GILAB does not contain any such safeguards.

2.4 Obligation to conform to RICA

As noted above, the Constitution stipulates that the rights in the Bill of Rights may be limited only in terms of law of general application. The relevant law regarding the interception of communication is RICA, which prohibits the interception of private communication without prior judicial authorisation.[13] The Act sets out the grounds on which the judge may issue an interception order and specifies which of these grounds can be invoked by each of the security services and law enforcement organisations.[14] RICA considers the interception of communication to be an investigative method of last resort.

GILAB should state that the interception of foreign signals intelligence will be subject to RICA.

It is relevant in this regard that the National Strategic Intelligence Amendment Bill of 2008, which was not promulgated, provided that the Inspector-General of Intelligence must report annually to Parliament on the NCC's activities and in such report must indicate any contraventions by the NCC of the requirements of RICA. GILAB should include a provision of this kind.

The need for GILAB to contain explicit references to RICA in relation to foreign signals intelligence is reinforced by the fact that officials from the NCC and the Ministry of Intelligence informed the Ministerial Review Commission that RICA was not applicable to the NCC's activities.[15] The Commission held that their position was erroneous. The Inspector-General for Intelligence agreed with the Commission's interpretation of RICA.[16]

2.5 Additional concerns

GILAB does not refer to the NCC's bulk monitoring capability. Does this mean that the capability will not be used or that it will only be used to collect foreign signals intelligence? There has been some confusion about this in the past and the matter ought to be clarified in the legislation.

GILAB provides that the SSA can collect foreign signals intelligence "in accordance with the intelligence priorities of the Republic". This phrase is too broad and vague to be a proper basis for infringing the right to privacy. Instead, GILAB should provide that the SSA can collect foreign signals intelligence in accordance with RICA.

GILAB does not address the problem of ‘incidental information' that is acquired in the course of intercepting communication. This problem is discussed in section 3(2)(g) below.  

3. Intrusive Measures

3.1 Unconstitutional use of intrusive measures

South African intelligence officers have defined intrusive methods of investigation as follows: "Intrusive methods of intelligence collection include any methods that infringe on the constitutional right to privacy such as communication interception, physical and electronic surveillance, infiltration of organisations, searches, etc".[17]

Because intrusive methods infringe the right to privacy, they must be authorised by law of general application.[18] The law must specify the circumstances that warrant the use of intrusive methods and must include safeguards that protect the right to privacy.[19]

Legislation permits the intelligence services to intercept communication and enter and search premises. The use of these measures is covered in detail in RICA. The Intelligence Services Act No. 65 of 2002 also contains provisions on entry, search and seizure. But other intrusive methods - such as infiltration of an organisation; surveillance; and recruitment of an informant who reports on the private affairs of an individual or organisation - are not regulated by legislation and are thus unconstitutional.

The Inspector-General of Intelligence holds the view that all intrusive measures should be governed by legislation:

A limitation of [constitutional] rights may be justified on grounds of threats to national security. Such limitation should meet the test of proportionality which includes the nature of the right and the importance of the purpose of the limitation. As such the capacity to gather intelligence should be matched by equally strong safeguards that protect the constitutional rights of citizens and sustain an open and democratic society (emphasis in the original).[20]

Any special powers or immunities granted to members of an intelligence agency to gather domestic intelligence, which are not possessed by ordinary citizens, must be specifically authorised and documented by a democratically elected authority. Except in cases of national emergency, the granting authority shall be the legislative branch (emphasis in the original).[21]

While all intrusive methods employed by organs of state are constitutionally and politically sensitive, the use of these methods by intelligence services should be treated with particular caution. The intelligence services employ intrusive measures secretly and the person under scrutiny is unlikely to ever learn of the investigation. As a result, the targeted person cannot object to the measures and challenge their validity in court. Unable to mount a legal challenge to the intrusion, the person is effectively deprived of his or her rights relating to just administrative action[22] and access to courts.[23] In addition, intrusive measures invariably encroach on the privacy of individuals with whom the targeted person has contact but who are not themselves the subject of any intelligence investigation.

3.2 Recommendations

The executive should introduce legislation that regulates in a uniform manner the use of intrusive measures by intelligence organisations. The legislation should be consistent with Constitutional Court decisions regarding infringements of the right to privacy and should therefore contain the following elements:

a. The use of intrusive measures should be limited to situations where there are reasonable grounds to believe that i) a serious criminal offence has been, is being or is likely to be committed; ii) other investigative methods will not enable the intelligence organisation to obtain the necessary intelligence; and iii) the gathering of the intelligence is essential for the organisation to fulfil its functions as defined in law.

b. The intelligence bodies should be prohibited from using intrusive measures against persons and organisations that are involved solely in lawful activity.

c. The use of intrusive measures by the SSA should require the approval of the Minister for State Security. The Minister must be satisfied that the criteria for using these measures have been met.

d. The use of intrusive measures should require the prior authorisation of a judge. As in the case of RICA, the legislation should prescribe the information that the applicant must present in writing and on oath or affirmation to the judge. 

e. As in the case of RICA, the legislation should state that intrusive methods may only be used as a matter of last resort.

f. The legislation should require intrusive measures to be carried out with strict regard to decency and respect for a person's rights to dignity and personal freedom, security and privacy.

g. The legislation should deal with the problem of ‘incidental information'. It should state that the intelligence organisations must delete within specified periods i) private information about a person who is not the subject of investigation where the information is acquired incidentally through the use of intrusive methods; ii) private information about a targeted person that is unrelated to the commission or planning of a criminal offence; and iii) all information about a targeted person or organisation if the investigation yields no evidence of the commission or planning of an offence.

Prior to the introduction of new legislation, the heads of the intelligence organisations should take immediate steps to ensure that their policies and procedures on the use of intrusive measures provide for ministerial approval and are aligned with the Constitution. The Minister of State Security should ask the Inspector-General of Intelligence to certify the revised policies and procedures in terms of their alignment with the Constitution.

4. The counter-intelligence mandate

4.1 A dangerous mandate

In terms of the National Strategic Intelligence Act of 1994 as amended by GILAB, the SSA shall fulfil the national counter-intelligence responsibilities and for this purpose shall conduct and co-ordinate counter-intelligence.[24]

Section 1(b) of GILAB amends the definition of ‘counter-intelligence' to mean "measures and activities conducted, instituted or taken to impede and to neutralise the effectiveness of foreign or hostile intelligence operations, to protect intelligence and any classified information, to conduct vetting investigations and to counter subversion, sedition, treason and terrorist and related activities".

Counter-intelligence thus entails four functions, two of which are clear: to protect intelligence and classified information; and to conduct vetting investigations. The other two functions - to impede and neutralise the effectiveness of foreign or hostile intelligence operations; and to counter subversion, sedition, treason and terrorist and related activities - are not described precisely in the legislation and are not regulated. What is meant by ‘impede', ‘neutralise' and ‘counter'? Which counter-intelligence measures and activities are legitimate and which are illegitimate?

In its submission to the Ministerial Review Commission, the National Intelligence Agency (NIA) expressed concern that the National Strategic Intelligence Act does not provide clear guidelines in relation to countermeasures.[25] In fact, the Act does not provide any guidelines at all. GILAB does not address this problem.

It is a matter of great concern that offensive countermeasures, which carry the risk of infringing constitutional rights and interfering in lawful political, are not subject to legislative constraints. This creates two dangers: that the SSA develops an inappropriate interpretation of its counter-intelligence mandate; and that the Agency's countermeasures infringe constitutional rights without proper oversight and without sufficient cause and sense of caution.

By way of comparison, RICA provides that the security services may not intercept private communication without judicial authorisation and it contains detailed guidelines, criteria and procedures for obtaining this permission. The level of authorisation is high and the criteria for obtaining judicial permission are strict because interception of communication violates the constitutional right to privacy. Counter-intelligence, which might similarly entail infringements of rights, should be subject to similar safeguards.

The White Paper on Intelligence of 1994 contains the following important policy prescriptions, which have not been incorporated into legislation:

No intelligence or security service/organisation shall be allowed to carry out any operations or activities that are intended to undermine, promote or influence any South African political party or organisation at the expense of another by means of any acts (e.g. ‘active measures' or ‘covert action') or by means of disinformation.

Measures designed to deliberately interfere with the normal political processes in other countries and with the internal workings of parties and organisations engaged in lawful activity within South Africa, must be expressly forbidden.

A further problem arises from the definition of ‘subversion' in the National Strategic Intelligence Act. Subversion entails "any activity intended to destroy or undermine the constitutionally established system of government in South Africa".[26] It is not at all clear what ‘undermining' the system of government means. Since the definition does not require subversive activity to be illegal, it is possible that lawful political action might be adjudged to be ‘undermining' and thus subversive. In a democracy such judgements are dangerous and should not be made by an intelligence agency.

4.2 Recommendations

The National Strategic Intelligence Act should define more precisely, and should regulate, the functions of impeding and neutralising the effectiveness of foreign or hostile intelligence operations and countering the designated threats.

In accordance with the White Paper on Intelligence, the Act should prohibit the SSA from interfering with, and using countermeasures against, lawful political and social activities in South Africa and other countries.

In accordance with the White Paper on Intelligence, the Act should prohibit the SSA from disseminating false or misleading information to the public via the media or any other means.

The Act should define ‘subversive activities' as those that have a violent or otherwise criminal character.

In addition to tighter legislative provisions, there is a need for ministerial regulations on countermeasures. These regulations should be published for public comment.

5. The Domestic Intelligence Mandate

5.1 Overly broad domestic mandate

Section 1(e) of GILAB amends the National Strategic Intelligence Act by adding a definition of ‘national security' that excludes "lawful political activity, advocacy, protest or dissent". This is a positive amendment and is presumably aimed at ensuring that the SSA does not gather intelligence on lawful political activity. GILAB does not achieve this aim, however, because it does not amend the term ‘domestic intelligence' in the National Strategic Intelligence Act.

The National Strategic Intelligence Act, as amended by GILAB, provides that one of the functions of the SSA is to gather, correlate, evaluate and analyse domestic intelligence in order to identify any threat or potential threat to the security of the Republic or its people.[27] The Act defines ‘domestic intelligence' to mean "intelligence on any internal activity, factor or development which is detrimental to the national stability of the Republic, as well as threats or potential threats to the constitutional order of the Republic and the safety and well-being of its people".[28]

There are three major problems with the domestic intelligence mandate as defined above. First, the mandate is much too broad and open to interpretation. In previous years NIA interpreted this mandate in so expansive a fashion as to encompass the thematic focus of virtually every state department.[29] This was impractical and unnecessary, and it detracted from NIA's focus on serious criminal threats.

Second, the terms ‘security of the Republic and its people', ‘national stability' and ‘threats to the constitutional order' are imprecise and open to interpretation. NIA's mandate has been reinterpreted at least three times since 1994 but the results of this process have not been subject to an open parliamentary and public debate.[30] 

Third, the broad mandate gave rise to NIA adopting a "political intelligence function".[31] This may have politicised the Agency and given rise to an inappropriate focus on political activities. The political intelligence function entailed monitoring and reporting on transformation within government departments; on competition within and between political parties; and on the impact of political policy decisions.[32] These activities are completely inappropriate in a democratic country. 

In its submission to the Ministerial Review Commission, NIA proposed that the concept of ‘security threat' should be defined more clearly; that the Agency should have a narrower mandate; that the mandate should concentrate on serious crimes; and that the Agency's political intelligence function should be abandoned.[33]

5.2 Recommendations

GILAB should amend the National Strategic Intelligence Act so as to ensure, consistently and unambiguously, that the SSA's domestic intelligence mandate excludes "lawful political activity, advocacy, protest or dissent". The vague and imprecise terms in the Act, such as threats to ‘national stability' and the ‘constitutional order', should be removed.

Footnotes:

[1] Ministerial Review Commission on Intelligence, ‘Intelligence in a Constitutional Democracy. Final Report to the Minister for Intelligence Services, the Honourable Mr Ronnie Kasrils MP', 2008. Available at www.ssronline.org/document_result.cfm?id=3852.

[2] Ministerial Review Commission, ‘Intelligence in a Constitutional Democracy', chapter 8.

[3] Section 14(d) of the Constitution.

[4] Section 36(1) of the Constitution.

[5] Ministerial Review Commission, ‘Intelligence in a Constitutional Democracy', pg. 184-5.

[6] Ibid, pg. 185.

[7] This is because section 14 of the Constitution states that "everyone" has the right to privacy.

[8] Section 231(5) of the Constitution.

[9] Section 232 of the Constitution.

[10] The Declaration can be viewed at www.un.org/Overview/rights.html.

[11] The Covenant can be viewed at www1.umn.edu/humanrts/instree/b3ccpr.htm.

[12] Mistry v Interim Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC); and Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In Re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others, 2001 (1) SA 545 (CC).

[13] Section 2 of RICA provides that "subject to this Act, no person may intentionally intercept or attempt to intercept, or authorise or procure any other person to intercept or attempt to intercept, at any place in the Republic, any communication in the course of its occurrence or transmission".

[14] Sections 16(3) and 16(5) of RICA.

[15] Ministerial Review Commission, ‘Intelligence in a Constitutional Democracy', pp. 187-9 and 191.

[16] Ibid, pg. 191.

[17] Ibid, pg. 157.

[18] Section 36(1) of the Constitution.

[19] Mistry, op cit; and Investigating Directorate: Serious Economic Offences, op cit.

[20] Ministerial Review Commission, ‘Intelligence in a Constitutional Democracy', pg. 157.

[21] Ibid, pp. 157-8.

[22] Section 33 of the Constitution.

[23] Section 34 of the Constitution.

[24] Section 2(1)(b) of the National Strategic Intelligence Act No. 39 of 1994. Whereas previously this was the function of the National Intelligence Agency, GILAB makes it a function of the SSA.

[25] Ministerial Review Commission, ‘Intelligence in a Constitutional Democracy', pg. 144.

[26] Section 1 of the National Strategic Intelligence Act.

[27] Section 2(1)(a) of the National Strategic Intelligence Act.

[28] Section 1 of the National Strategic Intelligence Act.

[29] Ministerial Review Commission, ‘Intelligence in a Constitutional Democracy', chapter 6.

[30] Ibid, pg. 128.

[31] Ibid, pp. 129-132.

[32] Ibid.

[33] Ibid, pp. 147-150. 

Source: Parliamentary Monitoring Group

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