Source: IOL

The Constitutional Court of South Africa this week ruled the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) as unconstitutional, at a hearing in Pretoria.

RICA is an act that permits state officials to intercept the private communications of any individual, subject to conditions.

The judgment, presided over by Justice Mbuyiseli Madlanga on Thursday, ruled against RICA saying that it did not provide “adequate” safeguards to render it lawful.

The ruling came after an appeal was made by the Amabhungane Centre for Investigative Journalism and it’s managing partner, Sam Sole, who had been the subject of state surveillance.

Sole appealed the court to confirm orders made by the High Court last September, which ruled the RICA act unconstitutional.

“At the heart of this matter is the right to privacy, an important constitutional right which, according to this Court, “embraces the right to be free from intrusions and interference by the state and others in one’s personal life,” said Madlanga.

“Whilst RICA prohibits the interception of any communication, it leaves the door wide open for the interception of communications in a variety of ways.”

Madlanga ruled against RICA, adding that it failed to provide safeguards if the subject of surveillance was a lawyer or journalist.

Furthermore, the court said that RICA was deficient in several aspects, to meet the threshold required by section 36(1) of the Constitution, which requires the act to justify its infringement of privacy.

The ConCourt suspended the act as of Thursday for 36 months in order for Parliament to cure the defect.

“The declaration of unconstitutionality by the High Court is confirmed only to the extent that the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA) fails to:

(a) provide for safeguards to ensure that a judge designated in terms of section 1 is sufficiently independent;

(b) provide for notifying the subject of surveillance of the fact of her or his surveillance as soon as notification can be given without jeopardising the purpose of surveillance after surveillance has been terminated;

(c) adequately provide safeguards to address the fact that interception directions are sought and obtained ex parte;

(d) adequately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully, including prescribing procedures to be followed for examining, copying, sharing, sorting through, using, storing or destroying the data; and

(e) provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist.”

You can now RICA your SIM cards online

Vodacom and Rain consumers can RICA their sim-cards online, while MTN promises to improve RICA service in the near future.

  • RICA stands for the Regulation of Interception of Communications and Provision of Communication-Related Information Act
  • All SIM cards in the country must be registered with a user’s personal details such as residential address and ID number
  • Online registration allows customers to avoid queues
  • Vodacom was the first telecommunications company to make use of online RICA in 2018, but this was only used to verify and update RICA information of existing customers
  • Similar to an instore-RICA, consumers are required to have a valid South African identity document and a proof of residence that is no more than 3 months old
  • MTN has pledged to partner with the Department of Home Affairs to leverage digital databases and biometric authentication to improve the process
  • Cell C and Telkom do not allow for online RICA, with no plans in the near future to release the functionality

RICA changes aim to mitigate mass surveillance

Source: IOL 

Michael Masutha, Justice and Correctional Services Minister, has confirmed he will be introducing amendments to the RICA Act, to close any potential loopholes allowing large-scale surveillance of the South African public.

Masutha said in a reply to parliamentary questions session, that the revision of the RICA is in an initial drafting phase so an indication of what will be covered in the bill can’t be revealed as yet.

However, he indicated that both the issue of targeted interception and mass surveillance are being considered under the revisions.

“Although the RICA currently provides for strict standards before an interception direction may be issued for targeted interceptions (the interception of indirect communications, real-time communication-related information or direct communications), international developments will be taken into account during the reviewing process, to provide for appropriate and proportional safeguards and oversight mechanisms in respect of applications for targeted interceptions,” Masutha said in his reply, according to Business tech.

“The aspect of mass surveillance is also being considered with a specific aim to ensure that such a surveillance process will be subject to appropriate safeguards and oversight mechanisms to protect the rights of individuals who may be targets of mass surveillance measures,” Masutha continued.

In May 2017, Civil society group Right2Know said that law enforcement is using a legislative loophole to force SA’s cellular operators to hand over sensitive information about clients.

In an issued statement the group said it had issued applications in terms of the Promotion of Access to Information Act requesting information on how often Cell C, MTN, Telkom and Vodacom hand over caller information.

On 23 August 2017, Statistics given by Vodacom, MTN, Cell C and Telkom showed that that law enforcement requested call records for at least 70 000 phone numbers every year. Call Sean Mchugh Lawyer for effective legal aid to solve your issues.

Original article © IOL

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