RICA: Is it unconstitutional?

Yesterday, after a long period of procrastination and after being bombarded by text messages from my service provider, I finally had the SIM-card of my cellphone RICA’d. But first, I looked at the Regulation of Interception of Communications and Provision of Communication-Related Information Act in terms of which this process is mandated to see what I was signing away by complying with the law.

Could it be that the Act infringes on the right to privacy guaranteed in section 14 of the Constitution by requiring all cellphone users to provide their service provider with personal details about themselves, including their names, identity numbers and home addresses? What is the purpose of the Act and does it strike the correct balance between the need to respect the right to privacy and the need to allow for the interception of private communication in order to combat crime?

The Act does far more than requiring cell phone users to provide personal information  about themselves to the company who issued the cell phone or SIM-card to them. The owner of a cell phone or SIM-card has a duty in terms of the Act to report the theft, destruction or loss of that phone or SIM-card to the police within a reasonable period after having reasonably become aware of the loss, theft or destruction of the phone or SIM-card. The police must then immediately provide the person who reported the theft or loss with written proof that the report has been made and must keep a record of this theft or loss.

The aim of this section is clearly to ensure that all SIM-cards and phones can be identified and linked to a specific users. If that SIM-card or phone is then used to commit a crime, the person involved can be tracked.

But keeping track of cell phones and SIM-cards is not the main purpose of the Act. The main purpose is to regulate the interception of  private communication between individuals. One intercepts communication by listening in or recording that communication. A communication can include communications via email, phone calls, letters or private and personal conversations between individuals. Section 2 of the Act prohibits such interceptions, which means that without the requisite legal permission no one can legally record your phone calls or your private conversations without your consent and neither can they hack into your computer and access your emails.

This does not mean that one of the parties to a communication cannot record it as this is explicitly allowed for by the Act. So, where a police officer phones a criminal suspect and talks to that suspect the conversation can be recorded. The Act seems to be aimed at the interception of a communication by a party who is not involved in the communication. A third party can also intercept a communicatin between two people if one of the people involved in the communication has given permission for this. The Act also allows the recording of phone calls to, say, a call centre by a business running that call centre.

The Act does allow the interception of phone calls and the like by the police but usually only if permission has been granted to do so by a judge. A judge can only grant such permission if strict criteria are met. For example, if the judge is satisfied that there are reasonable grounds to believe that a serious offence has been or is being or will probably be committed or that the gathering of information concerning an actual threat to the public health or safety, national security or compelling national economic interests of the Republic is necessary and if there are reasonable grounds that the information sought will actually be obtained by the interception, that judge can give permission for the interception.

The Act also places a general prohibition on the disclosure of any information obtained in terms of the Act. This means the cell phone provider cannot disclose your address obtained when you RICA’d to anyone else. It also means that unless certain strict criteria are met, recordings of your phone calls made in terms of an order given by a judge cannot be made public and cannot be used in a court of law against you.

This is quite a complicated Act and it is impossible to summarise its various provisions in this short post. It may also be possible that I have missed something in the Act that might be glaringly problematic. But – on paper, at least – it seems as if there are sufficient safeguard in the Act to justify the limitations it imposes on the right to privacy.

Section 14 of the Constitution states that everyone has the right to privacy which includes the right not to have their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed. The Act therefore clearly limits this right but I suspect that any limitation would be justifiable in terms of the limitation clause. Because a judge is required to authorise the interception of communications by the police and because one’s private details may not normally be provided to third parties, the Act seems to strike the right balance between the need to protect one’s privacy on the one hand and the need to combat crime on the other.

Of course, the big problem is that there is a widespread perception that our various intelligence services do not always adhere to the Act and that private communications are intercepted without judicial authorisation. If this is true, it will be very difficult to address the problem as the very police who might illegally be listening in to one’s phone calls will be required to investigate the crime they are busy committing.

What is required is for the establishment of an independent body who could monitor the police and intelligence service to ensure that they do not break the law.  Section 210 of the Constitution does provide  for civilian monitoring of the activities of the intelligence services by an inspector appointed by the President, as head of the national executive, and approved by a resolution adopted by the National Assembly with a supporting vote of at least two thirds of its members. But it is unclear whether this inspector of intelligence has the requisite independence and political will to ensure that the intelligence services do not break the law.

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