Access to Public Information, Privacy, Data Protection and Retention, Surveillance
Bartnicki v. Vopper
In Progress Expands Expression
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The North Gauteng High Court in Pretoria, South Africa declared the bulk interception of communications an unjustifiable limitation to the right to privacy and found various aspects of surveillance legislation unconstitutional. An investigative journalist brought the case after he became aware that his communications had been intercepted when a lawyer referred to transcripts of his communications in unrelated legal proceedings. The Court stressed the constitutional requirement to limit the right to privacy in the least intrusive way and highlighted the need to safeguard the media’s right to freedom of expression by ensuring protection of the confidentiality of sources. Therefore, interception applications must note if the subject is a journalist or lawyer and subjects must be notified within 90 days of the expiry of the interception order to allow for redress of any alleged abuses. Based on the ruling, parliament has two years to set standards for processing of personal data, strengthen the independence of designated judge issuing the interception order, and establish a mechanism to balance the rights of the subject. The ruling is pending confirmation by the Constitution Court.
In 2015, a case involving the decision to drop corruption charges against then-President of South Africa, Jacob Zuma, inadvertently revealed that the communications of an investigative journalist, Sam Sole, and a state prosecutor, Billy Downer, had been intercepted in 2008. This was discovered when Zuma’s attorney attached to court papers extracts from official interception conversations between Sole and Downer. Sole had been investigating the decision to drop the charges against Zuma – an extremely controversial prosecutorial decision in South Africa at the time. Sole is the managing partner of amaBhungane Centre for Investigative Journalism, an independent and non-profit investigative journalism newsroom in South Africa which aims to “develop investigative journalism to promote free, capable media and open, accountable and just democracy”. In addition to its investigative journalism, amaBhungane advocates to secure access to information and media freedom.
The interception of Sole and Downer’s communications was effected under the Regulation of Interception of Communications and Provision of Communication Related Information Act, 2002 (RICA). RICA had been adopted with the aim to protect privacy of communications subject to the exceptions of serious crimes or threats to national security. Although the Act conceives of a default prohibition on interception of signals or storing of communications which acknowledged the right to privacy and the potential for abuse of such practices the drafters had also “recognised that there were also honourable motives to intercept communications.” [para. 29] The legislation acknowledges that as the power to intercept communications is intrusive, the power was created only for law enforcement and security officials and only after applying for and obtaining permission to intercept an individual’s communication. RICA requires that an application for interception be evaluated by a “designated judge” who is a retired judge, and “thus by implication an experienced judge” selected by the Minister of Justice at his discretion. [para. 32] The judge is required to report to Parliament annually and is remunerated for the work. Section 16 of RICA governs the nature of the application and the information that must be included in that application, which includes information about the applicant, the law enforcement officer who will execute the interception, the subject of the interception, the reasons for the application, whether other investigative procedures have been used and the period for which the interception is sought. The provision also requires that the designated judge can only issue the interception direction if she or he is satisfied that there are reasonable grounds to believe that a serious offence has been or will be committed, the interception is necessary and that the purpose for which the interception direction is sought will actually be achieved by that interception.
The RICA surveillance regime allows for real-time surveillance but also provides for officials to obtain a person’s communications history. The telecommunications providers in South Africa are statutorily required to store the content of communications for periods as prescribed by the Minister of Justice. The information obtained through the interception could not be broadcast to anyone but authorised persons and the person being surveilled would never be notified: the interception of an individual’s communication may remain secret forever. The Act also created an Office for Interception Centres which is responsible for storage and management of the data collected by telecommunications service providers.
The proof that Sole’s communications had been intercepted enabled amaBhungane and Sole to challenge RICA’s constitutionality. Sole explained that his concerns with the Act were that he had not known he had been surveilled until Zuma’s attorney attached those extracts and therefore, without notification that he had been the subject of interception it was impossible for him to act to vindicate his right to privacy. In addition, Sole was not able to ascertain the grounds under which the order for interception had been granted and he did not know what had happened to the content of his communications that had been intercepted. Sole was especially concerned about the confidentiality of his sources as a journalist, particularly as much of his investigative journalism work involved conflicts with government and intercepted communications could put the confidentiality and safety of his sources at risk.
In April 2017, amaBhungane and Sole launched an application in the North Gauteng High Court in Pretoria for a declaration that various provisions of RICA were unconstitutional. The case was brought against the Ministers of Justice, State Security, Communications, Defence and Military Veterans, Police, and Telecommunications and Postal Services, and the Office of the Inspector-General of Intelligence, the Office for Interceptions Centres, the National Communications Centre, the (Parliamentary) Joint Standing Committee on Intelligence, and the State Security Agency. The Right2Know Campaign and Privacy
International were admitted as amici curiae in the Court.
Judge Sutherland delivered the judgment of the Court. The central issue for the court to determine was whether the limitations to the rights to privacy in section 14 of the Constitution, to freedom of expression of the media in section 16, of access to a court in section 34 and to a fair trial in section 35 were justifiable. The main factor for the Court to consider was whether RICA’s provisions were the least intrusive ways in which those rights were infringed, and the Court described the tension as being between “privacy and security of both individuals and society at large.” [para. 27]
AmaBhungane made a number of suggestions for how the surveillance system could be improved to better respect individuals’ constitutional rights and how to strengthen the safeguards within the legislation. It submitted that a right of notice after the cessation of the interception would allow for at least a damages claim for invasion of privacy which is necessary because the nature of a surveillance system would always be susceptible to abuse. It argued for a system in which the independence of the designated judge was enhanced through the selection of the incumbent by the Judicial Service Commission (as other judges in South Africa are appointed) and that the designated judge’s role would be assisted by a “public advocate to introduce an adversarial element into the process of evaluation.” [para. 40] AmaBhungane also submitted that the period of data storage should be reduced from the current minimum period of three years to a maximum period of six months, and that the legislation should stipulate how that data should be managed and address oversight of service providers who deal with the data: amaBhungane submitted that RICA was deficient in how it governed how data was stored, who had access to that data and how that was regulated, whether copies of the data could be made, whether copies had to be recorded, whether access could be shared within the intelligence or security communities, whether the data had to be destroyed and how irrelevant material would be separated and destroyed from the relevant material. In addition, amaBhungane submitted that the law should allow for protection of legal privilege with particular restraint in the authorization of interception of lawyers’ and journalists’ communications, and if such interception was necessary the law should require the use of an intermediary to filter the communications to exclude what would be covered by legal privilege or the identification of an investigate journalist’s confidential source.
The Court set out the four challenges to the constitutionality of RICA: the absence in the law of a right of notice to a person under surveillance; the alleged shortcoming in the law to create a model of safeguards in the selection of the designated judge and to govern the judge’s role; the alleged shortcomings in the custody and management of collected data; and the alleged shortcoming in the law to safeguard legal privilege and preserve the confidentiality of the sources of investigative journalists. [para. 26] A separate challenge was made to the effect that there was no law governing the collection of bulk surveillance and so any such collection was unlawful. The Court set out the test for constitutionality of a law and explained that the first stage requires a determination of the “violation per se of the right” and the second stage consists of an “examination of the character of the violation and its rationale.” [para. 36] In the present case it was accepted that section 14 had been violated, and the Court emphasized that the rights to freedom of expression and of the media, legal privilege and access to courts were implicated alongside the right to privacy. Section 36 is a general limitations clause in the South African Constitution and requires that “a subtraction from the constitutionally guaranteed right must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.” [para. 37] A key facet of this inquiry in the present case was whether the limitation of the right was a “minimal intrusion compatible with the needs of the exception” and the Court referred to Independent Newspapers (Pty) Ltd v. Minister for Intelligence In Re Masetla v. President RSA 2008 (5) SA 31 (CC) which had described the minimum requirements as being “properly tailored and proportional to the end it seeks to attain.” [para. 37]
The Court explained that the model under RICA was grounded in the principle of accountability through an independent authority – a designated judge – to give permission to intercept and through a “bureaucratic edifice” which requires officials to record and report their activities. [para. 27] In undertaking a qualitative assessment of RICA the Court acknowledged that the “value of privacy is privileged and expression is given to the idea that where exceptions to respect for privacy are to be allowed, a high threshold of justification is stipulated.” [para. 35] It noted that “to trespass into the private realm is permissible only to the extent that a superior claim to do so can be made out on grounds of necessity.” [para. 35] In respect of RICA’s safeguards model the Court noted that the adoption of an independent authority to approve interceptions ensured a distinction between the person desiring the interception and the person approving it and was designed to “prevent, as far as possible, abuse of the system.” [para. 35] However, the Court noted that the efficacy of the approval system in RICA is heavily dependent on the role of the designated judge but expressed concern that “the judge’s role and scope to effectively prevent abuse is tied up with the rational to intercept, and the ramification of that rationale in some respects limit what the judge can do; ie, the judge has to work in secrecy, not the typical public judicial terrain.” [para. 39]
The Court first examined the argument that RICA was unconstitutional to the extent that it did not provide for a right to be notified of surveillance after the interception of communications had been completed. Section 16(7)(a) of RICA forbids any disclosure to the subject of the interception. The Court recognized that notification before surveillance was “self-evidently problematic” as it would defeat the purpose of interception, and so explained that the focus was on “post-surveillance notice.” [para. 41] With reference to the European Court of Human Rights case of Klass v. Germany ECHR  5029/71 the Court stressed that while there is a need for surveillance the system adopted must contain “adequate and effective guarantees against abuse.” [para. 42] The Court recognized that without post-surveillance notification a subject of interception is denied the opportunity to approach the court to rectify an abuse of the surveillance system. Here, the right to access the court under section 34 of the Constitution is compromised and the Court held that a post-surveillance notification “is critically instrumental to securing a section 34 right.” [para. 44] The Court noted that the question was therefore whether a case for a total ban on post-surveillance notification – and thus “perpetual secrecy” – outweighs the constitutional rights in section 34, read with section 14. The Court recognized that “obviously there is no remedy to prevent the intrusion, but, at very least constitutional damages, ex post facto, for an improper intrusion ought to be available.” [para. 19] The Court referred to Canada, the USA and Japan which require post-surveillance notice unless there are reasons (as determined by an independent authority) not to give notice. The Court described European Court of Human Rights jurisprudence, including the Klass case, Weber & Saravia v. Germany  46 EHRR SE5 and Zakharov v. Russia  63 EHRR 17, as holding that “a post surveillance notice is an essential ingredient of a surveillance model that complies with article 8 of the European Convention.” [para. 49]
The Court held that this analysis of comparative jurisprudence demonstrates that “world opinion has embraced this right as a facet of a democratic social order, subject to safeguards against undoing the very objectives of legitimate surveillance.” [para. 51] The Court noted that no evidence had been provided for why South Africa should divert from this principle, and held that by applying section 36’s consideration of less restrictive means capable of achieving RICA’s purpose meant that “the need for protection from abuse through accountability before a court can be effected practicably, by a post surveillance notification as is the case in other democratic societies.” [para. 52] Accordingly, the Court ruled that RICA was unconstitutional to the extent that it did not allow for post-surveillance notice and ordered that RICA, pending enactment of legislation to cure this defect, must be read as including a requirement to notify the subject of interception within 90 days of the expiry of the interception direction unless the designated judge approves a postponement of up to 180 days. The Court stipulated that if these postponements amount to a total period of surveillance for three years, any application for further postponement of notification must be made before a panel of three designated judges.
In respect of the submission that the role of the designated judge under RICA was unconstitutional, the Court recognized that restricting the pool of persons eligible to fill the position to experienced jurists is a “crucial dimension of the credibility of what is represented to the citizenry as the epitome of independence, impartiality, legal knowledge and decision making skill.” [para. 57] The Court acknowledged that the detail included in section 16 of RICA illustrates that the drafters of the legislators had sought to construct a system that contained safeguards but it also recognized that there were inadequacies in that model as the designated judge’s appointment and de facto unlimited duration of their term compromised the judge’s independence. The Court noted that there had been no serious rebuttal to amaBhungane’s argument that as the designated judge was appointed at the Minister of Justice’s discretion, carried out their functions in secret, had a de facto indefinite term, and its operations contrast so dramatically with the “regular judicial role of open performance and the publishing of orders to the world,” that the independence of the designated judge was seriously compromised. [para. 62-63] The Court ordered that, pending full amendment by Parliament, the Minister of Justice would continue to appoint the designated judge, but only on nomination from the Chief Justice and for a non-renewable term of two years.
In respect of the argument that a public advocate be appointed for hearings before the designated judge to give effect to the right to a fair hearing under section 34 of the Constitution to enable the judge to consider two parties’ positions, the Court recognized that this provided a suggestion for how less restrictive measures could be used to achieve the goals of RICA. The Court acknowledged that the current system failed to address the fact that the designated judge issues ex parte orders, but did not accept that the inclusion of a public advocate would be a sufficient safeguard.
The Court examined the argument that RICA was unconstitutional to the extent that it allowed for intrusion into past communications by requiring that all telecommunications service providers retain data for between three and five years, as specified by the Minister. The Court described this as meaning that “all of a person’s personal telecommunications, up to three years past, lie in wait for the state to pry into, if its officials convince a judicial officer to authorise access.” [para. 85] The Court referred to a 30 June 2014 report from the UN High Commissioner for Human Rights which had expressed concern about the “relatively weak safeguards, oversight and remedies against unlawful interference with the right to privacy” in RICA. [para. 91] The Court acknowledged that the periods in RICA differed from other jurisdictions: Australia has a maximum period of two years and other jurisdictions allow for storage of data for between six months and one year. However, the Court held that this aspect of the Act was not inconsistent with the Constitution.
Conversely, the Court held that RICA’s governance of stored data was “out of kilter with the norms espoused by other democratic jurisdictions.” [para. 107] With reference to the European Court of Human Rights case of Weber and Saravia v. Germany, and the UK case of Davis v. The Secretary of State for the Home Department  EWHC 2092 (17/07/2005) the Court stressed that the nature of data storage and the accountability systems must be set out explicitly in the legislation itself so as to avoid abuses of power. The Court held that RICA’s “oversight regime is extremely light” in that there was no judicial oversight of the Centres storing the data, and that as RICA allowed for an application to any judge for access to the stored data (as opposed to the requirement that an application be made to the designated judge for real-time surveillance) it “is not only an ineffective safeguard, it is no safeguard at all.” [para. 106]
The fourth challenge was on the grounds that RICA did not adequately address legal privilege or the need to protect the confidentiality of journalistic sources. The Court recognized that the analysis in this respect “is past the point where it is accepted, if only grudgingly, that privacy can be punctured for a competing and supposedly greater good.” [para. 112] The Court stressed the distinction between the roles of lawyers and of journalists and so addressed the two issues separately. The Court confirmed that the duty on lawyers to not reveal communications between them and their clients is trite and is a privilege which belongs to the client and not to the lawyer. The present case concerned the ability of third parties to gain access to privileged communications and the consequences of such access. The Court noted that access to a client’s communications is a narrower intrusion than access to a lawyer’s communication because the latter could reveal confidential information about other clients inadvertently. The Court held that RICA did not address this concern. AmaBhungane had suggested the use of an intermediary who could sift through the intercepted communications and remove irrelevant and otherwise privileged information. The Court acknowledged that there was no international precedent for such a system but recognized that “in some circumstances the employment of an intermediary would be not only useful, but the only practical way to avoid undesirable disclosures.” [para. 126] The Court also agreed with amaBhungane’s suggestion of the inclusion an explicit requirement that the status of the subject as a lawyer be disclosed in an interception application “given the delicacy of the implications of an interception order.” [para. 127]
The Court recognized the important role investigative journalists play, describing it as “the ferreting out of facts by enquiry, largely, from whistle-blowers and others who rat on their fellows and their bosses” and emphasized the need to protect the confidentiality of sources. [para. 129] The Court noted that despite the protection of the right to freedom of expression of the media in the Constitution “there has been a reluctance to take the next step needed to recognize journalists as a special class of persons whose intrinsic working methods warrant especial protection, such as lawyers enjoy.” [para. 130] The Court identified that the issue here was not so much compelling journalists to reveal their sources but the ability of third parties to identify those sources through intercepting the journalist’s communications. The Court accepted that section 16 of the Constitution does not expressly protect the confidentiality of sources, but noted that “if the output is so highly valued, why ought we to be precious about recognising the critical instrumentality of confidential sources in producing that valuable output?” [para. 131] It added that it “is somewhat mealy-mouthed to proclaim the press as a bastion of democracy and then chose to ignore the realities of how information is gathered to enable the press to fulfill that role.” [para. 131] Here, the Court relied on the express mention of the press in section 16 to demonstrate the constitutional recognition of its value and role. The Court referred to Bosasa Operations (Pty Ltd) v. Basson 2013 (2) SA 570 (GSJ) and held that a purposive interpretation of section 16 ensured protection of journalistic sources from prying and that such an approach would give effect to the requirement that the role of the media be “fostered not denuded.” [para. 133] The Court added that the right to withhold the identity of sources extends to the right not to be spied on. The Court also referred to the African Commission’s Declaration on Principles of Freedom of Expression in Africa which expressly stated that the media should not be required to reveal sources, except in exceptional circumstances.
The Court referred to South Africa’s corruption and noted that “[i]n a country that is as wracked by corruption in both our public institutions and in our private institutions as ours is, and where the unearthing of wrongdoing is significantly the work of investigative journalists, in an otherwise, seemingly, empty field, it is hypercritical to both laud the press and ignore their special needs to be an effective prop of the democratic process.” [para. 131] It added that investigative journalists in South Africa have attracted the attention of powerful individuals who are “capable of suborning the apparatus of the State to smell out their adversaries” and that this exacerbates the potential for abuse in the current RICA system. [para. 138] Here the Court made explicit reference to the facts of the case and stated that the fact that the State had obtained interception directions allowing it to spy on Sole and Downer demonstrates the vulnerability within RICA (that designated judges may be lied to) that enables abuse of the system. The Court held that such vulnerability could be fixed by requiring the designated judge to examine the justification of an interception direction against a journalist.
The Court held that RICA was constitutionally deficient because “the peculiar position of journalists is not expressly catered for,” and as with lawyers, “spying on a journalist would be to investigate the people with whom that journalist is in contact,” which cannot be appropriate. [para. 136] The Court rejected the argument that there is no special constitutional right that can be claimed by journalists by stressing that section 16 of the Constitution expressly refers to the media.
The fifth and final challenge related to the collection of bulk interceptions under RICA which the Court defined, with reference to the ECHR case of Centrum For Rattvisa v. Sweden  68 EHRR 2, as the interception of intelligence through radio links, satellites and cables. Bulk surveillance was described by amaBhungane as being an “internationally accepted method of strategically monitoring transnational signals, in order to screen them for certain cue words or key phrases” to protect national security against transnational threats. [para. 143] The Court noted that the two questions to be answered in respect of bulk surveillance was whether there was a law that authorizes its collection, and then whether such a law was constitutional. It was common cause that RICA did not authorise bulk interception, but the State had argued that the National Strategic Intelligence Act, 1994 (NSIA) did so as section 2 empowered the security and law enforcement services to “gather, correlate, evaluate and analyse domestic and foreign intelligence.” However, the Court held that the NSIA does not authorise interceptions except for the purposes of vetting individuals for security clearances, but that related only to targeted and not bulk interceptions, which would require the application of RICA. Accordingly, the Court held that NSIA could not be read as authorizing bulk interceptions. The Court noted the Director-General of Intelligence’s submission that bulk interceptions is a common practice around the world as a “notorious fact” but stressed that in the absence of a South African law authorising such interception, it cannot be permitted.
In conclusion, the Court ruled that RICA was unconstitutional to the extent that it did not allow for post-surveillance notification, that the current appointment system of the designated judge did not ensure their independence, and that RICA did not require the applying agency to inform the judge that the subject of surveillance was a lawyer or a journalist. However, the period for retention of data was held to not be inconsistent with the Constitution. The Court acknowledged that the current system was problematic as it allowed for only ex parte orders but rejected the argument that the inclusion of a public advocate in proceedings would address that issue.
AmaBhungane is applying to the Constitutional Court to confirm the declarations of Rica’s unconstitutionality.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The North Gauteng High Court in South Africa confirmed that interception of communications without post-surveillance notification was an unjustifiable limitation of the right to privacy. The Court made particularly strong statements in favour of the media’s right to freedom of expression, holding that even though the Constitution did not expressly protect the confidentiality of journalists’ sources, the express inclusion of the media in the constitutional right to expression meant that the right should be interpreted in a way that truly gives effect to the media’s rights.
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