Spy bill could make anyone a ‘person of national security interest’ if passed into law

The General Intelligence Laws Amendment Bill (GILAB), or spy bill, could make anyone a “person of national security interest” if passed into law.

The spy bill tabled in November 2023, is currently before an ad hoc committee of the National Assembly, which is conducting public hearings on the bill.

It will see the surveillance of electronic signals, communication signals and internet traffic, on a very large scale on an untargeted basis. If intelligence agents misuse this capability, it can have a massive, negative impact on the privacy of innocent people.

NGOs characterised the bill as an attempt to “interfere with civil society and religious institutions to an extent that would threaten our rights to free expression, to organise and assemble, to fully engage in civil and political life, and to religious and cultural practice”.

If the bill is passed as is, it will give the state power to label innocent citizens who are neither suspected of a crime nor a threat engaged in lawful criticism of the state and protests as a threat to national security.

Another fear is that the bill could establish a surveillance state operating out of the Office of the Presidency.

Controversial

Jane Duncan, Professor of Digital Society at the University of Glasgow said the bill has been controversial for giving too much power to the government to vet people for improper reasons.

Duncan, however, said there’s been very little focus on the fact that it will give government powers to conduct bulk surveillance with inadequate oversight.

“The centre can collect a person’s communications even if they are not suspected of a crime. They do so to collect intelligence on foreign threats to national security. It is not meant to collect domestic communications due to privacy concerns.

“However, the centre has been used in the past to spy on South African politicians, businesspeople and journalists. This was revealed in 2006 by the Inspector General of Intelligence. The bill is meant to prevent these abuses from happening again,” Duncan said.

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Failed to act

Duncan added that government failed to act, even after a 2008 Commission of Enquiry appointed by then-minister of intelligence Ronnie Kasrils told it do so.

In 2021, the Constitutional Court found that the State Security Agency (SSA) was using bulk surveillance unlawfully as there was no law regulating how these incredibly powerful spying powers were being used.

“The court argued for a law that sets out “the nuts and bolts of the centre’s functions”, as well as details on the duration of the collection, gathering, evaluation and analysis of intelligence, and how it was captured, copied, stored, or distributed.

“The new General Intelligence Laws Amendment Bill doesn’t even start to address these details. It is an incredibly weak effort on the presidency’s part to limit potential abuses of SA’s bulk surveillance capabilities,” she said.

Legal standards

Duncan stressed the bill ignores the global legal standards set for regulation and oversight of bulk surveillance, calling for domestic laws to set out the grounds on which bulk interception may be authorised, the circumstances, and procedures for granting authorisation to use it

“Laws on bulk surveillance should also set out the procedures for selecting, examining and using material obtained from interception, the precautions to be taken when storing, destroying and communicating intercept material, supervision, compliance and oversight procedures.”

Duncan said the bill has one strength, which is that the centre needs to seek the permission of a retired judge, assisted by two interception experts, before conducting bulk surveillance capabilities.

“However, the judge will be an executive appointment which also raises doubts about independence,” Duncan said.

“Incorporating more detail in regulations would not be adequate, as the bill gives the intelligence minister too much power to set the ground rules for bulk interception. These rules are also unlikely to be subjected to the same level of public scrutiny as the bill,” she said.

Concerns

She said the spy bill does not address whether bulk interception should ever be acceptable as a surveillance practice, which is contested internationally.

“This is because this form of surveillance usually extends far beyond what is needed to protect national security.”

Duncan said government has known for 18 years that it’s bulk surveillance capabilities are under-regulated and open to abuse.

“It acted only when the Constitutional Court forced it to, and the bill it has released is woefully inadequate,” Duncan said.

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