Case studies: how communications surveillance has been abused in SA

The Right2Know Campaign has published This article is an extract from Stop the Surveillance, a publication on communications surveillance in South Africa.

Case Study 1: amaBhungane journalist bugged
In 2015, it emerged that unknown government spies had bugged amaBhungane journalist Sam Sole while he was reporting on the corruption investigation against Jacob Zuma. Though it had previously been reported that he suspected he was under surveillance, it was verified after transcripts of Sole’s phone conversations with a source were submitted as evidence in the ongoing court battle over President Zuma’s corruption charges. This revealed that state resources had been used to spy illegally on Sole as a journalist, and had then leaked the contents of his communications, illegally, to a private citizen (the transcript was submitted by Zuma’s legal team). In 2017, amaBhungane launched a court challenge to the constitutionality of RICA, South Africa’s main surveillance law, under which his communications was spied on.

Case study 2: Cops spy on Sunday Times journalists
In 2017, a former Crime Intelligence official was found guilty of illegally spying on the communications of two journalists, Mzilikazi wa Afrika and Stephan Hofstatter, two investigative journalists at the Sunday Times. In 2010, when they were investigating major corruption scandals in the South African Police Service, the SAPS Crime Intelligence Division (CID) spied on their phone communication.

According to evidence before the court, SAPS intelligence officials got a warrant to monitor these phone numbers by lying to the RICA judge – they told the judge these were the phone numbers of suspected criminals who were under investigation. Under RICA, it is an offence to supply false information to the RICA judge.

A single Crime Intelligence official, Bongani Cele, was prosecuted in the Pretoria commercial crimes court under charges of misleading the judge. Though nobody else has been charged, there is evidence that other more senior officials were involved. Ironically, nobody has been prosecuted for actually ordering that journalists’ phones be tapped – only for providing false information in order to get the warrants.

As a result, a warrant was issued to collect Afrika and Hofstatter’s meta-data – a record of who they called and exchanged messages with, and their locations.
This would be a serious violation of their rights as journalists and would potentially expose the identities of their sources. But the allegations are a clear reminder of some of the loopholes in RICA that R2K has complained about. Only through urgent reforms can we prevent these abuses from happening in the first place.

• The low threshold for issuing a warrant allows rogue cops to mislead judges when requesting a warrant, and it has also been reported that intelligence structures can intercept communications without getting a warrant.
• The fact that RICA forbids users from being notified when their communications are intercepted means that when these abuses happen, the victims have no way of ever finding out about them. (Afrika and Hofstatter were warned by sources that they had been bugged.)
• The fact that RICA requires everyone to register their identity to a SIM card makes it almost impossible for citizens to communicate anonymously. With mounting evidence of surveillance abuses, it is absolutely necessary for journalists for example to be able to speak to confidential sources without compromising their identity.

Case study 3: “Rogue Spook” Paul Scheepers
Former Crime Intelligence official Paul Scheepers faces prosecution in the Bellville Special Commercial Crimes Court for a range of offences, including contravening RICA. Scheepers is accused of running a private security firm on the side of his police duties, and supplying falsified affidavits to a magistrate in order to get meta-data records of lawyers, senior cops, an individual from the financial services regulator, and other individuals.

He is also accused of acting as a vendor for a UK based company called Forensic Telecommunications Services Ltd (FTS), helping sell an IMSI Catcher on behalf of FTS to a local cash-in-transit security firm (who, according to court documents, had been assured it would be legal to acquire the device). The trial is scheduled for May 2017.

Case study 4: Crooks with Grabbers
The ‘Grabber’ is a local nickname for a kind of technology that is also sometimes called an “IMSI Catcher” (pronounced ‘Imzee’). These devices, which can be as small as a car battery, are capable of sucking up data from thousands of mobile phones in a radius of up to several kilometres, and identify each user by their SIM card. While they are acquired in secret for “national security” purposes, in other countries cops have been accused of using them to investigate petty crime and to identify participants at protests. In a number of countries, human rights groups have submitted complaints or legal challenges to their use.

In 2015, the public learned that these devices were available in South Africa after police arrested a group of individuals alleged to have been in possession of a privately owned grabber device. These men are now facing prosecution in the Pretoria Commercial Crimes Court.

Meanwhile, it has emerged that police and security agencies also possess and use these grabbers in utmost secrecy, raising serious questions about legality.

Even when used in ‘normal’ criminal investigations, there are concerns that these devices may be inherently unlawful. This is because they can ‘grab’ the phone information of everyone in a certain radius, not just of the person that is being targeted by police. Therefore, even if a judge has authorised the surveillance of one particular person, when the device is used this way, it may violate thousands of other people’s privacy too. It is not clear how this can be lawful in terms of the RICA system, let alone section 14 of the Constitution, which protects the right to privacy.

In 2015, R2K used the Promotion of Access to Information Act to seek proof that the RICA judge is even consulted when Grabbers are used for surveillance: government agencies refused to provide the information.

This article is an extract from Stop the Surveillance, a publication on communications surveillance in South Africa.