The Survival Toolkit for Journalists: How to protect yourself against Digital Surveillance guide was developed by ARISA  in response to the growing threat of digital surveillance and cyber security legislation, used by governments and others to track and monitor journalists in their efforts to harass and muzzle journalists from carrying out their work.
The guide provides journalists and media houses with a deeper understanding of the legal frameworks on cyber security laws in the SADC region, and offers critical knowledge and tools that can be implemented by journalists and media houses to protect their online spaces, digital footprint and data.

Surveillance Laws in Africa – a review of six countries by Tony Roberts, Abrar Mohamed Ali, Mohamed Farahat, Ridwan Oloyede and Grace Mutung’u. Published by the Institute for Development Studies.

Date Published : usp_custom_field : 27 Jan 2022

Comrade Murray Hunter’s 2022 Ruth First Lecture: “Big ‘Tsek: Surveillance and public space in Johannesburg”

Date Published : usp_custom_field : 9 November 2021

by Murray Hunter, Alt.Advisory.

Introduction

Last month, the Supreme Court of India ordered an independent inquiry into whether the state used Pegasus spyware to spy on its citizens. The judgment, handed down on 27 October 2021, comes after mounting evidence that the surveillance software has been used to target journalists, activists, and politicians in that country, and around the world.

The Pegasus ruling offers guidance on how democratic institutions, and the people who rely on them, can hold governments and surveillance entrepreneurs more accountable. It may pave the way for similar litigation in other jurisdictions.

Domestically, the judgment adds to the growing jurisprudence on the right to privacy in India (which was only confirmed as a right protected by India’s constitution in a Supreme Court ruling in 2017) and the limits of the state using ‘national security’ as a blanket defence against judicial review.

Internationally, it adds to a growing body of jurisprudence limiting surveillance abuses. In February, South Africa’s Constitutional Court struck down sections of the country’s surveillance law in the amaBhungane matter, demanding greater transparency and safeguards for state interception of communications. In May, the Grand Chamber of the European Court of Human Rights declared that the UK’s mass surveillance programmes violate privacy and freedom of expression.

The background

Pegasus is a brand of ‘weapons-grade’ spyware, capable of remotely installing itself on someone’s mobile phone in order to covertly read messages, record calls, and harvest data from the device. Spyware like Pegasus hijacks the very technology that is meant to connect and empower us, and turns it against the user. It’s the very essence of the unchecked surveillance powers that have made digital privacy such a central question for contemporary democracy. The NSO Group, the Israeli firm that developed Pegasus, has said it only sells the spyware to governments, for the purposes of combatting terrorism and serious crime. But there is a growing body of evidence that the software is used nefariously by governments to spy on their critics and suppress dissenting voices.

Earlier this year, an international consortium of news organisations revealed that a leaked database of thousands of suspected Pegasus targets included prominent journalists, human rights defenders, and elected officials across the world – including scores of journalists, politicians, activists and legal practitioners in India. This is not the first finding of its kind: a separate investigation by Citizen Lab and Amnesty International concluded that several Indian journalists and political figures were targeted in a Pegasus exploitation of WhatsApp in 2019.

These revelations prompted a multiplicity of petitions to India’s Supreme Court, from various journalists, politicians, and public-interest groups ­– including several people who have been named as possible targets of the Pegasus software. Broadly, the petitioners wanted an independent inquiry into whether the government had any role in the purchase or use of the spyware against Indian citizens. And broadly, the Supreme Court agreed, with a few features in its ruling that are worth noting.

Surveillance as an infringement of privacy

The ruling expanded on the Court’s previous landmark judgment in Puttaswamy, which confirmed privacy as a constitutionally protected right in India, and which “recognized that the right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy.”

The Court affirmed that privacy “is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy. It is this expectation which enables us to exercise our choices, liberties, and freedom.”

Yet, in considering the facts in this case, the Court also noted that threats to privacy can also have a chilling effect – and like South Africa’s Constitutional Court and the Grand Chamber of the European Court of Human Rights, the Indian Supreme Court noted that unchecked surveillance is a particular threat to media freedom:

“It is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights. Such a scenario might result in self-censorship. … Such chilling effect on the freedom of speech is an assault on the vital public watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information.”

Rebutting national security defences

The Pegasus judgment also serves to set some limits on the extent to which the state can use ‘national security’ as a blanket defence against scrutiny by its citizens or the courts. The Court’s frustration at the state’s reluctance to go on record in the Pegusus matter is clear ­– despite offering the state ample opportunities to respond to the petitioners’ allegations, and repeated reassurance that there would be no need to disclose anything that would comprise national security, the Court found the state had offered only “an omnibus and vague denial”, and its submission “d[id] not shed any light on their stand or provide any clarity as to the facts of the matter at hand.”

The Court also affirmed that, while there is limited scope for judicial review of national security matters, “this does not mean that the State gets a free pass every time the spectre of ‘national security’ is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning.”

The Expert Committee

The Court ordered the establishment of an independent panel, chaired by a former Supreme Court judge, to investigate whether Pegasus software was used to spy on Indian citizens, who was targeted, and whether any Indian government agencies were involved. The panel will also make policy recommendations for law reform on the use of surveillance, the creation of oversight and complaints procedures, and any steps needed to protect the unlawful invasion of citizens’ privacy.

Notably, the Court rejected a proposal by the state’s Solicitor General for the government to be allowed to establish such an inquiry, on the basis that government agencies are alleged to be implicated in the matter ­– and that “justice must not only be done, but also be seen to be done.”

The way forward

Whether this independent panel can get to the bottom of the abuse of spyware in India remains to be seen. But the Supreme Court’s Pegasus judgment is notable in the global context of increasing surveillance abuses. First, it serves to shore up key principles on privacy and democratic oversight of state-security matters in the world’s biggest democracy. Second, the Court’s order is aimed at fact-gathering, which has often proved to be a vital step in litigation and campaigning on surveillance issues.

South Africa’s Constitutional Court judgment in amaBhungane was only possible because the applicants spent years gathering evidence which indicated that the state had spied on an investigative journalist – using court records, freedom-of-information requests, and the findings of media investigations and civil society research. The ruling in Europe on the UK’s mass surveillance programmes was only possible because of disclosures by the whistleblower Edward Snowden, and torturous effort to push through complaints and investigations through arcane oversight bodies.

In the Pegasus judgment, India’s Supreme Court has essentially found that governments cannot simply be taken at their word on surveillance matters, and that the path of transparency is sometimes the only way to redress.

As other societies grapple with surveillance abuses – and government agencies hoping to avoid any serious scrutiny or reform – it’s a lesson worth noting. It now falls on activists and public interest lawyers to take the Pegasus precedent forward. It’s a battle worth fighting and one that we need to win.

* Murray is a Senior Analyst // Researcher at ALT Advisory.

Written by Michael Kwet for the Right2Know Campaign

Media Defence’s report on Mapping Digital Rights and Online Freedom of Expression in East, West, and Southern Africa offers an in-depth study analyses each region and each country, and is ideal for anyone who wants a deeper understanding of digital restrictions in sub-Saharan Africa. The report was prepared with the assistance of ALT Advisory. 

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The African Declaration on Internet Rights and Freedoms was published in  to promote human rights standards and principles of openness in Internet policy formulation and implementation on the continent. The Declaration is intended to elaborate on the principles which are necessary to uphold human and people’s rights on the Internet, and to cultivate an Internet environment that can best meet Africa’s social and economic development needs and goals.

The Declaration builds on well-established African human rights documents including the African Charter on Human and Peoples’ Rights of 1981, the Windhoek Declaration on Promoting an Independent and Pluralistic African Press of 1991, the African Charter on Broadcasting of 2001, the Declaration of Principles on Freedom of Expression in Africa of 2002, and the African Platform on Access to Information Declaration of 2011.

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The Right2Know Campaign has published STOP THE SURVEILLANCE, an activist guide to communications surveillance in South Africa.

Nearly everyone in South Africa knows about a law called “RICA” (the Regulation of Interception of Communications and Provision of Communications Related Information Act). This is the law that says everyone who buys a SIM card must register their identity to the SIM card: meaning that all of your communications are linked to your identity.

In fact, RICA is South Africa’s main surveillance law: it is the rulebook that says how and when the South African government can intercept your private communications: your calls, messages, emails, and internet activity. This is what we sometimes call “bugging” or “tapping” of your communications.

Privacy is a basic human right enshrined in section 14 of South Africa’s constitution. In South Africa, just like all over the world, there are growing concerns that the government’s surveillance capacity – its ability to listen in on people’s private communications or gather information on their activities – is being abused.

There is evidence in South Africa that surveillance is used to target journalists, political activists, unionists, and to interfere in our politics and public life. There are also broader concerns that this affects not only a few individuals, but millions of ordinary people in South Africa who use communication every day. Some of this is because of the board powers that are contained in RICA, some of this is because of communications surveillance that is conducted outside of the powers of RICA.

This is not only a South African problem; it is a concern around the world. Advancements in technology have brought together many different kinds of communications (calls, e-mails, web searches, online chats, social media) to one device that is both mobile and connected to the internet.
Across the world, communication surveillance is a common tool of repression. Those with power and wealth are afraid of ordinary people, especially when the people are struggling for political freedom and socio-economic justice.

R2K Statement welcoming the High-Level Review Panel on the State Security Agency

The Right2Know Campaign calls on President Cyril Ramaphosa to, forthwith, implement all of the recommendations of the High-Level Review Panel on the State Security Agency.

More specifically and immediately, to implement the Panel’s recommendation that the Secrecy Bill be scrapped and that, “the President instructs the appropriate law enforcement bodies, oversight institutions and internal disciplinary bodies to investigate all manifest breaches of the law, regulations and other prescripts in the SSA … with a view to instituting, where appropriate, criminal and/or disciplinary prosecutions. In particular … the establishment of a multidisciplinary investigation team to deal with the criminal investigations and that a private advocate is appointed to conduct the internal disciplinary hearings”.

We now know from the Report that there were many such breaches. Of particular concern to R2K is the confirmation of a wide range of ‘rogue’ spying on and in some cases infiltration of, civil society organisations, unions, student movements and journalists. Indeed, the report confirms the suspicions that we have had for a long time, that the State Security Agency has targeted the Right2Know specifically.

We firmly believe that these rogue securocrats are a threat to our democracy and they must be dealt with accordingly. As such, we demand that those who engaged in these criminal activities and gross abuses are named, investigated and disciplined and/or prosecuted where appropriate.

In the wake of the report’s release (noting that the President released the report two days after refusing R2K’s PAIA request that it be released), we would like to also highlight the fact that we are still waiting for the findings from the Inspector General of Intelligence (IGI) on the complaints that we lodged years ago with his office. We call on the IGI to release the findings of his investigations into our complaints as soon as possible.

The people of South Africa not only have a right to know, but they also deserve justice.

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