State-on-nationals' electronic communication surveillance in South Africa: A murky legal landscape to navigate?

摘要

The discussion concerns itself with state-on-nationals' electronic communication surveillance in South Africa. The 2013 Snowden revelations of collaboration between the United States National Security Agency and the United Kingdom Government Communications Headquarters conducting bulk surveillance of all people as well as the 2015 South African spy cable disclosures involving communications between the South African State Security Agency and other foreign intelligence agencies confirmed that surveillance technology provides for covert, mass and undiscriminating government surveillance of nationals and states. Although the latter surveillance was conducted for national security purposes, government agencies also conduct surveillance for law enforcement purposes. The question pertaining to this discussion is whether information of South African nationals is lawfully accessed and/or retained in terms of a legal framework. This should include effective checks and balances, accountability and transparency to ensure that the information gathered is effectively protected against abuse such as its utilization for means other than the original purpose for which it was accessed and/or retained. Another concern is whether different thresholds apply to the purposes in conducting state electronic communications' surveillance. The aim of the discussion is not to vilify government surveillance practices as governments carry the onerous task of protecting nationals against threats within the ever-advancing electronic communication technology medium. The aim is rather to establish whether there exist voids and/or deficiencies and if affirmative, how it could be addressed to ensure an open and transparent surveillance landscape aimed at striking a balance between security and human rights protection.