[intro]The threat of surveillance has a chilling effect on journalism and creates a space where crucial liberties enriched in the Constitution such as freedom of expression; the right to privacy and access to information are threatened. The ability of citizens to question and challenge those in power is put at risk and journalists can no longer guarantee the protection of their sources. Lebogang Mokoena looks at the consequences when the watchdogs are watched.[/intro]

“Surveillance silences whistleblowers and sources, especially those in government,” said Stephan Hofstatter. He and Mzilikazi wa Afrika are two Sunday Times investigative journalists whose phones were tapped by a former crime intelligence officer.

“Those in the security services know how easy it is to illegally tap journalists’ phones, either using their own surveillance equipment or being provided with user data from a contact at a telecoms company,” said Hofstatter adding that authorities often wanted to know who journalists are talking to. The information is then used to take disciplinary action against employees who are not authorised to talk to the media.

“It makes it more difficult and expensive to do our work because we often have to travel great distances to meet sources who refuse to communicate over the phone or electronically. You could easily end up flying somewhere to meet a source who doesn’t yield any useful information. It also leaves one feeling vulnerable, exposed and angry, when you know that your movements can be tracked and your conversations monitored,” said Hofstatter.

According to the two journalists, there were no ‘justifiable reasons’ for bugging their phones. “It’s completely out of hand. Private security contractors, intelligence agents or members of the police routinely make use of illegal taps for no justifiable reason to spy on their colleagues, activists and journalists and are very rarely called to account,” he said.

Targeting the masses

Detailed research has been done in South Africa, exploring the capacity of intelligence services to intercept the private telecommunication of citizens. Journalist and media activist, Professor Jane Duncan, said that the government possesses the equipment to carry out both targeted and mass surveillance.

Mass surveillance allows the government to sift through masses of data and profile potential criminal threats … With targeted surveillance, however, you need to know who you’re going after in order to get an interception direction from a judge,” said Duncan.

Mass surveillance can take place without a warrant, while targeted interception requires a warrant, which means that mass surveillance allows government to spy on people outside the framework of the law. Wa Afrika and Hofstatter are certainly not the first victims of state surveillance.

[T]here have been several cases of journalists’ communications being intercepted,” said Duncan, adding that journalists who tend to write stories about sensitive issues are often targeted. “But that is what journalists do; so they were not doing anything wrong, they were doing their jobs,” said Duncan.

Although South Africa has laws governing communications surveillance, a 2015 study titled ‘The Right to Privacy In South Africa’ states that the legislation is inadequate. There are significant regulatory gaps and weak safeguards, lack of oversight and consequences for unlawful interference with the right to privacy, including mass surveillance.

What is especially worrying is that Rica has several clauses, which violate the Necessary and Proportionate Principles. Rica regulation includes mandatory SIM card registration, prohibition of disclosure, mandatory installation of telecommunication services and products, which are interceptable, long periods of meta-data retention and weak oversight mechanisms. These clauses violate the right to privacy as enshrined in the 1996 Constitution.

The government insists that mass surveillance, undertaken by the National Communications Centre, does not fall under Rica and that therefore they can undertake mass surveillance without a warrant. This is hugely problematic as it means that the most powerful surveillance capacities of the state are the ones that are least regulated by law,” said Duncan.

Advocacy coordinator for the Right2Know (R2K) Campaign, Murray Hunter said that Rica is ‘untransparent’, ‘invasive’ and ‘open to abuse’. On Freedom Day, R2K submitted a memorandum of demands to the Department of Justice to call for urgent changes to RICA to make it harder for the state to secretly spy on the communications of journalists, activists and ordinary citizens. Their key demands included dropping SIM card registration, an end to the storage of data, and for citizens to be notified when their communication is being intercepted. They also demanded judicial protection against surveillance to be strengthened.

“Legal reforms are only a first step in ensuring an end to surveillance abuses; much more needs to be done,” said Hunter.

Who can you trust?

‘General’ Alfred Moyo is a community activist who is well versed in being watched by authorities. He is the organizer of Makause informal settlement, a community development forum formed in 2007 to assist residents who were facing forced evictions. He said social media platforms were used to gather information about activities taking place in their organisation.

“When you are a project organiser you have to associate with people. It may put you at a difficult position of who you trust or don’t.”

Whether activists and journalists are being watched or not, deadlines need to be met, stories need to be written and sources need to be found. Hofstatter had practical advice for young journalists. “Always assume your phone is being tapped, especially if you are writing about the security services. That means your movements can be tracked too. Try to meet sources face to face, use a pre-Ricaed phone or stick to encrypted messaging services like Viber, WhatsApp, Telegram and Signal,” he said.