The Southern African Journal of Information and Communication - Vol 1, No 1, 2001

'But for the Nicety of Knocking and Requesting a Right of Entry' (1): Surveillance Law and Privacy Rights in South Africa

Tracy Cohen (2), Senior Lecturer, LINK Centre, Graduate School of Public and Development Management, University of the Witwatersrand (3)

Abstract

As communications tools expand beyond that of the traditional fixed line telephone, so too do the tools for monitoring those communications. Fuelled by dual needs to protect the privacy rights of individuals, as well as monitor the activities of criminals using the communications networks, governments around the world are toning their surveillance laws in accordance with technological developments and constitutional necessity. In the South African context, the clash of rights inherent in this activity warrants an examination of the continued constitutional status of the Interception and Monitoring Prohibition Act of 1992, in light of recent proposals by the Law Commission to amend its provisions. It is argued that whilst the target of such a law justifies its existence, the reach of its ambit potentially displaces its ongoing constitutional validity.

Introduction

1998: ‘Multiple position intercept stations located globally capture all satellite, microwave, cellular and fibre-optic communications traffic and then process this information through the mammoth computer capabilities of the worlds largest and most effective intelligence agency. The system comprises advanced voice and optical character recognition programmes and seeks out code words or phrases that will prompt the computers to flag the message for recording or transcribing for future analysis. Intelligence analysts at each of the "listening stations" maintain separate keyword lists, known as "dictionaries", to analyse any conversation or document flagged by the system, which is then forwarded to the respective intelligence agency headquarters that requested the intercept.’ (4)

This scenario is neither an extract from a science fiction novel by William Gibson (5) nor an Orwellian catechism of a futuristic glimpse into the tyranny of government empowered by technology. It describes an actual, global surveillance system operating today. Codename: ECHELON. Created by the United States National Security Agency (NSA), ECHELON is a vast network of electronic spy stations located around the world and maintained in conjunction with security agencies in the United Kingdom, Canada, Australia and New Zealand (6). These countries, bound together in a still-secret agreement dating back to 1948 called UKUSA, allegedly intercept and gather electronic signals of almost every telephone call, fax transmission and e-mail message transmitted around the world daily. The official targets of ECHELON are the communications inherent in political spying and commercial espionage. The reach of ECHELON, however, extends to the personal, political, religious and commercial communications of citizens (7).

The surveillance of electronic communications or 'wiretapping' is conducted in nearly every country in the world by governments. Despite a number of procedural safeguards, it is frequently abused (8). Although not limited to it, the most renowned target of the wiretap is the standard fixed-line telephone system (9). A rudimentary wiretap, undetectable to the target, can be placed in a variety of locations and requires little skill and inexpensive technology to operate (10). Despite varying approaches to privacy, this activity is sanctioned by laws passed under all forms of government.

This paper provides an overview of the existing Interception and Monitoring Prohibition Act (11) (‘the Act’) in South Africa, with particular reference to telephone calls (12). The primary object of this paper is to assess the extent of judicial synergy between the surveillance laws and privacy rights (13). Following an analysis of the history and operation of the Act, it is conceded that the prohibition as enacted in 1993 is on the face of it constitutional. However, it is asserted that legal, political and technological developments cast serious doubt on the long-term ability of this law to withstand constitutional muster. It is argued that whilst the target of the legislation operates in a constitutionally acceptable paradigm, the reach of the legislation displaces it. This assertion is contextualised through a brief review of the main proposals by the South African Law Commission (SALC) to amend the present surveillance law to take account of technological developments (14).

The genesis of surveillance laws in South Africa lies in the National Party’s self-preservationist obsession with ‘security legislation’. The interception of postal articles and telephonic communications was originally authorized in terms of s 118A of the Post Office Act (15). Advances in technology made it increasingly possible for the unauthorised interception and monitoring of postal articles or telecommunications to take place by both state and private parties. The government, moving for the passage of the Interception and Monitoring Prohibition Bill in 1992 (16), argued that such legislation was necessary in order to protect the individual’s common-law right to privacy. To attain this end, the legislation introduced two modifications: First, the Act altered the government functionary who could authorize such interceptions. Section 118A of the Post Office Act granted a government minister the right to exercise that power (17). In terms of s 2(2) of the Interception and Monitoring Prohibition Act 1992, only a judge or designated retired judge of the Supreme Court [sic] may issue a direction to monitor communications (18). This change was vital in order to divest the ‘security establishment of the state’ of the vast powers of authorisation in this regard (19). The second change necessitated a shift in focus from state security to the combating of serious crime (20). It was argued that a limitation on the right to privacy for this objective is as legitimate as one in the national interest, especially where syndicates and complex smuggling networks are concerned (21).

The Interception and Monitoring Prohibition Act (22) repealed s118A of the Post Office Act and came into effect on 1 February 1993, prior to the coming into effect of the interim Constitution (23). Its purpose is to prohibit the interception and monitoring of certain communications, except in accordance with the law and to provide for authorisation to do so in certain circumstances (24). A direction to monitor or intercept any communication may be issued on two grounds: if on the presentation of evidence, the judge is convinced that the offence committed or about to be committed is a serious offence that cannot be properly investigated in any other manner, or that the security of the Republic is threatened (25). ‘Serious offence’ is qualified in so far as it must have been committed over a lengthy period of time, on an organised and regular basis; or it must be one that may harm the economy of the Republic, or is an offence contemplated in the Drugs and Drug Trafficking Act 1992 (26).

Although ‘national security’ is a traditional basis upon which to limit the application of fundamental rights, the lack of definitive content to the concept is cause for concern. The potential ‘overbreadth’ in this regard may well justify judicial review to determine whether it accords with emergent limitations jurisprudence and can be regarded as ‘reasonable and justifiable’ in an open and democratic society (27). The Act stipulates the manner and procedure of applications for directions (28) and contains a ‘secrecy’ provision preventing any person authorized to perform functions under the Act from improperly disclosing any information (29). Offences and penalties are provided for in cases where the secrecy provisions or the blanket prohibition on unlawful monitoring and interception are violated (30).

Given South Africa’s history of state policing methods, the legislature had sufficient presence of mind to fortify the constitutional foundations of this Act with a number of substantive and procedural safeguards. Noting the practices of the apartheid regime, the courts have also stressed the importance of due process. Violations in this regard will automatically vitiate the direction and not only constitute a criminal offence in terms of s 2 of the Act, but also an infringement of the right to privacy, which includes the right not to be subject to ‘the violation of private communications’ (31).

More recent consideration was given to the provisions of the Act in the 1995 White Paper on Telecommunications Policy (32). Questioning the desirability of the extant situation, it enunciated a number of principles in regard to the interception of call traffic, for example, that the very right of government to intercept telecommunications traffic should be stringently controlled; that the Interception and Monitoring Prohibition Act should be reviewed in order to ensure sufficient safeguards are in place and that such a review should of necessity involve public debate and the participation of other Ministries, such as that of Safety and Security. It also proposed that the question of traffic interception should be dealt with in specific legislation and consequently such provisions should not be incorporated into the Telecommunications Act, which was to follow the White Paper (33).

South African law has always recognised a common-law right to privacy as an independent personality right, included within the concept of dignitas (34). The courts have historically granted actions for invasions of privacy under the broad principles of the actio injuriarum (35). It is trite that the concept and scope of ‘privacy’ has been variously defined and interpreted through the years, but at the very least it includes the right to be free from intrusions and interference by the state and individuals (36). It has been interpreted to include the freedom from unauthorised disclosures of information about one’s personal life (37). It also connotes that individuals should have control over not only the ‘inner sanctum’ (38) of their communications and the contents of them, but also who has access to the flow of information about them (39). The common-law right to privacy, including the inviolability of personal communications, was entrenched in s 14 of the Constitution (40). However, it is also trite that no right is absolute in operation and, provided that any dilution meets the requirements of the limitations clause, the ambit of that right may legitimately be reduced (41). In Bernstein v Bester (42) Ackermann J stated:

[I]t is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community… Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.’

Bernstein concerned the constitutionality of ‘summons and examination’ provisions in the Companies Act (43) on the basis that the provisions violate a cluster of interrelated and overlapping constitutional rights, which include the right to privacy. It was asserted that the compulsory production of documents under these provisions constituted a ‘seizure’ within the meaning of the right not to be subject to the ‘seizure of private possessions’ (44). Although distinguishable on the facts, this genre of reasoning accords with the principles espoused in Canadian and United States case law on surveillance and the right to privacy. Both jurisdictions prohibit the unlawful interception of communications on the grounds that it constitutes a search or seizure (45). The aim of the prohibition is to protect a reasonable expectation of privacy, which is violated when a third party intercepts a telephone conversation without the consent or knowledge of the parties (46).

There is an emerging body of South African jurisprudence on the issue of rights of privacy in the context of interception and monitoring of communications. How the courts have sought to deal with the issue has depended on the facts of the particular case, whether it was an intrusion inter partes or an intrusion between state and individual. Despite factual differences, two broad issues generally tend to be raised for consideration: whether the alleged monitoring of communications constitutes a breach of the right to privacy; and whether the manner in which the evidence was obtained affects its admissibility. Consideration of the latter is not within the scope of this paper (47).

As regards the first issue, violations of private communication have long been recognised as invasions of privacy in South African law. In S v A (48) the court held that eavesdropping and electronic surveillance by private detectives during matrimonial disputes might result in a criminal invasion of privacy if the methods used are unreasonable. The 1998 judgment of S v Naidoo & another (49) echoed sentiments expressed in foreign courts, that while surveillance may be necessary in order to facilitate effective police work, it may only be carried out pursuant to a judicial authority. Any monitoring that occurs without such authority is a contravention of the law and a violation of the constitutional right to privacy. Cases pursuant to Naidoo have shared the view that only an ‘overriding justification of public interest’ could prevail against the unlawful manner in which information was obtained and the infringement on the right to privacy that ensues (50). However, the exact content given to the vague notion of ‘public interest’ remains imprecise (51). A middle-ground approach was articulated in Protea (52) where it was stated that whether a constitutional right should prevail with unmitigated force would have to depend on the merits of the case and a discretion exercised with due regard to s 36(1), the limitations clause. Invariably, this involves a balancing act, weighing up the competing interests of uncovering the truth (which is always in the public interest) with the interests of protecting the right to privacy.

‘He took a twenty-five cent piece out of his pocket. There, too, in tiny clear lettering, the same slogans were inscribed and on the other face of the coin the head of Big Brother. Even from the coin the eyes pursued you. On coins, on stamps, on the covers of books, on banners, on posters and on the wrappings of a cigarette packet – everywhere. Always the eyes watching you and the voice enveloping you. Asleep or awake, working or eating, indoors or out of doors, in the bath or in bed – no escape. Nothing was your own except the few cubic centimeters inside your skull.’ (53)

Despite a growing need for privacy protection in the information age, it is naïve to assume that procedurally competent surveillance legislation is likely today to be unconstitutional. It is also arguable that technology is developing to such a degree that the ability of governments to monitor and intercept private communications, however well intentioned, may one-day render the operation of such legislation questionable. It is the aim of this section to consider a variety of factors that may cast doubt on the continued status of this law as constitutional. The recent proposal by the SALC is instructive in this regard and will be considered below (54).

The security of the Republic

A judge may authorise surveillance if a serious offence is about to be or has been committed or if he or she believes that the security of the Republic is threatened or that it is necessary to gather information concerning a threat to the security of the Republic (55). Arguably, the former of the two cited aims remains an unassailable ground of attack. Given current and growing levels of criminal activity in South Africa, it may be anticipated that limitations on fundamental rights to combat crime will increasingly be viewed as reasonable and justifiable. The latter basis of authority - ‘national security’- is not as robust and suffers from vagueness due to a lack of definition (56).

The concept of ‘national security’ is generally imprecise and can be applied in a myriad of circumstances to justify a range of government activities (57). During apartheid, many laws were in force which, on the basis of alleged national-security concerns, limited fundamental rights in various ways (58). Many of these laws still pepper our statute book. The principles of openness, transparency and accountability remain crucial and form part of the democratic package for delivery by the post-apartheid government. In South Africa’s nascent constitutional democracy, legislation of this genre heralds problems for absolute constitutionality and has to be reconsidered if not very narrowly applied. This is especially true of legislation that uses ‘national security’ a motivating ground for promulgation. It is trite that all constitutional rights can in appropriate circumstances be limited, but this limitation has to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. This in turn implies that a limitation on privacy in the name of ‘national security’ must impose a reciprocal burden on the state to give some definitive content to those words. A proper analysis of the relationship between legislation authorising surveillance of communications and the interests of national security is complex. To be legitimate, the scope and definition of ‘national security’ need to be narrowly framed and complemented with presumptions and rules on the burden and standard of proof that facilitates the balance between state and individual liberty. The European Court of Human Rights supports this view, noting that member states use – or abuse – the concept of national security interests and, where they consider this necessary, distort the meaning and nature of the term. Some clarification of what these concepts mean is needed in order to refine and improve the system for its real aim, the prevention of crime and terrorism (59).

The government has a responsibility to protect the privacy of those using the nation's telecommunications networks and, as highlighted above, our legislation was specifically designed to realise this purpose. At the intersection of law and social fact, however, ‘public policy gaps’ exist which must be monitored in order to give meaningful protection to privacy rights. These can only be addressed through stringent adherence to procedure and sanction for deviation. For example, the facts of Naidoo (60) illustrate that directions for surveillance can be obtained on improper, false and misleading evidence being given by the police to the relevant judge, the falsity of which is only discovered after the infringement of privacy has occurred. Current crime levels in South Africa are alarmingly high, revealing syndicated and organised networks. In many respects, these crime levels present a threat both to the security of the nation and to the ‘economy of the country’ (61). As such, the alacrity with which the government is willing to act will promote a strong public-policy argument supporting any effective measures to assist in the fight against crime.

In this scenario, evidence in criminal matters will always be tendered with intent to prove a ‘serious crime’. If courts endeavour to exclude this evidence, they may be perceived as being unduly lenient towards criminals – a charge already levelled at many courts and for which the political ramifications are immense. The concern from a constitutional point of view is that, in the effort to improve policing, directions may easily be sought on false or fabricated evidence presented by the police. As there may still be criminal activity that is under-way during the investigation of a specific crime and arrests and convictions are shown to be likely, violating the procedure for obtaining directions may be argued to be justifiable. Dicta clearly state that while not all invasions of privacy would be permissible, lawfulness must be decided with regard to the facts, which in turn need to be judged in light of contemporary boni mores and the general sense of justice of the community as perceived by the court (62). Whilst application of the constitutional protection against the admissibility of unlawful obtained evidence may render this argument nugatory (63), it is arguable that notions of ‘fairness’ and ‘the administration of justice’ especially within a crime-fighting context, could be judicially massaged to allow, or even justify, the admissibility of the evidence, regardless of how it was obtained (64). This has the potential to lead to abuse, especially as courts may be inclined to overrule decisions and established principles if there are considerations of public policy, fairness and legitimate state objectives that would be inconsistent with concepts of justice if they did not.

In today’s technological world, where the commission of crime can take place over any medium and the ability for syndicates to organise is unprecedented, it would be almost impossible to argue against the necessity of laws permitting surveillance. The state however has a responsibility to ensure that interests of privacy are accorded the highest priority in the implementation of this legislation. It is also crucial to successful governance that there be an efficient rule of law. Crime cannot be brought under control unless society has a competent, responsible and respected enforcement system capable of transparent and proficient policing and proscription. Yet, illegal or improperly executed methods of investigation are unacceptable, regardless of the importance of the state aim involved. These methods are counter-productive, bringing the administration of justice into disrepute by impinging on very human rights that the Constitution seeks to protect and its agencies seek to uphold.

Goosen v Caroline’s Frozen Yoghurt Parlour (Pty) Ltd (65) dealt with bias in a dismissal from employment based on improperly obtained tape recordings. The court placed greater emphasis on the relevance of the evidence than on the manner in which it was obtained and ruled that the tape recordings were admissible (66). It is interesting to note that this judgment was decided on the basis of the interim Constitution, which contained a slightly different provision on limitations from that of the final Constitution. Under s 33(1) of the interim Constitution, a hierarchy of rights was created that essentially gave priority to ‘political rights’. Any limitation of these rights, in addition to being reasonable and justifiable in an open and democratic society based on freedom and equality and not negating the essential content of the right in question, also had to be necessary. It was clearly intended that those rights covered by both the ‘reasonable’ requirement of s 33(1)(a) and the ‘necessary’ requirement of s 33(1)(b) would receive greater judicial protection. Those rights covered only by the ‘reasonable’ requirements of s 33(1)(a) were far more susceptible to government restriction. The right to privacy under the interim Constitution did not fall under the necessary requirement of s 33(1)(b) (67). Therefore, the higher test that the limitation must also be necessary, which set a more stringent standard was arguably not applicable to the right to privacy. With the coming into operation of the final Constitution and the abolition of the hierarchy of rights, it seems clear that the constitutionality of the Interception and Monitoring Prohibition Act is more vulnerable than it was under the interim Constitution and that a supplementary protection of the right to privacy now exists.

Section 14 of the final Constitution makes specific, although not exhaustive, reference to a number of possible constitutional violations concerning surveillance laws. The US jurisprudence as enunciated in Katz v United States (68) which speaks of interception of communications as constituting a ‘search and seizure’, could also have application to the South African situation (69). This assertion is buttressed by s 14(a) and (b), which prohibit a violation of person, home or property. John Locke pronounced as the famous transcendental idea that ‘every man has a "property" in his own person’ (70). That is, all that man (sic) makes and becomes is part of ‘his own person’ and this nobody has any right to other than himself (71). This sentiment has been echoed throughout the years by courts saying around the world, that ‘the most comprehensive of rights and the right most valued by civilized men is the right to be let alone’ (72). It therefore appears that s 14 of the Constitution as read to pertain to surveillance laws sets an inordinately high standard for limitations review, especially in the light of the specific guarantee in s 14 to privacy of communications.

An inherent flaw with surveillance legislation is that it fails to discriminate sufficiently between communications warranting interception and those not warranting it. ‘There is thus an encroachment on other people’s privacy and not only that of the person that one actually wants to bring to book’ (73). This problem of ‘target versus reach’ of law is not limited to this type of legislation. It is a problem common to legislation that encroaches, albeit justifiably, on a fundamental constitutional right, such as censorship legislation.

Whilst the target of the law may be individuals suspected of committing serious offences, or posing a threat to the national security, the reach of the legislation may potentially extend to include journalists, human-rights organisations, political dissidents and opposition, as well as innocent individuals living in close proximity to those being monitored, for example families.

In this regard, the Swiss case of Kopp (74) is instructive. The European Court of Human Rights found that the Swiss government’s tapping of an employee’s line in a law firm constituted a breach of art 8, which guaranteed the right to privacy (75). Noted as the worst of the violations was that the law firm’s partners and employees, clients and third parties who had no connection with the criminal proceedings were all monitored. ‘This exceeds the bounds of what is required to protect democratic institutions and amounts to a perverse inquisition.’ This concern was enunciated in the famous words of Justice Brandeis in Olmstead v United States:

‘Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject and although proper, confidential and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping.’ (76)

Contrary to criminals being thought of as the only targets of such legislative initiatives, human rights groups, reporters and political opponents are also common targets of surveillance (77). This need not, however, prompt Orwellian paranoia. There are practical limitations to surveillance, which is ultimately, a labour-intensive exercise, requiring considerable human resources to conduct taps, listen to and process the communications (78). Cryptographic technology, utilising a mathematical technique for scrambling conversations, is also widely available from suppliers of customer premise equipment to ‘scramble’ calls to ensure that conversations are not easily monitored. For network-based communications, such as the Internet, the use of encryption technologies is more contentious, especially in so far as their export is concerned (79). Notwithstanding the availability of technologies to both scramble and unscramble communications, the issue is less a matter of what is practically possible, than what is judicially desirable. Given the available technology and the convergence of communications, these ‘protections’ do not adequately address the constitutional concerns raised by legislation overbroad in application.

It appears clear that the Interception and Monitoring Prohibition Act did not envisage the extent of communications proliferation that technological development is yielding. With the exponential annual growth of the Internet, the ability to affect thousands more ‘communicators’ is also increasing and so too are the techniques for monitoring and interception (80). The potential target group and thus reach of the legislation are considerably augmented. In addition, serious questions of applicability must be raised about the ability of the law to keep abreast of technology. Does the Act apply to new technologies not contemplated at the time of its inception? With the triple effect generated by deregulation, globalisation and convergence, it is becoming increasingly difficult to ascertain technological, geographical and legal boundaries. In this context, what, for example, constitutes a telephone call when a ‘normal’ voice call can be initiated from a hand-held computer? Who constitutes a telecommunications carrier? What constitutes an information service (81)? These questions are prompting a new dialogue on efficiencies in regulation in the era of convergence. Trends indicate a move to models based on notions of co-regulation, in an attempt by government to gain assistance from industry for enforcement purposes (82).

In August 1994, the US Congress passed the Communications Assistance for Law Enforcement Act (CALEA) (83), largely in response to the FBI’s concern that new technologies could be used to impede criminal investigations (84). The object of this enactment, also known as the ‘Digital Telephony Act’ is to ensure that the government’s ability to eavesdrop on rapidly evolving digital services offered by new wired and wireless telecommunications carriers would remain as easy as tapping fixed line phones serviced by local telephone companies (85). A subsidy fund of 500 million USD was established to ensure that all telephone companies make their networks compliant for this law or risk $10 000 per day in fines (86). Essentially CALEA requires a redesign of the US communications network to facilitate surveillance on all forms of electronic media (87).

This law has marked implications for ISPs and Internet telephony firms, as it requires telecommunications companies to wire surveillance technology into their networks which could force Internet telephony firms to configure their systems to be easily wiretapped by law-enforcement agencies. The FCC, whilst trying to decide on how CALEA should apply to Internet telephony, has stated that the law applies to all ‘packet-switched technology’ that is used to provide telecommunications services (88). The development and proliferation of new technologies are not in themselves grounds for asserting the unconstitutionality of surveillance laws. However, by the same token the impact of technology means that the ease and extent of global surveillance possibilities give credibility to the potential overbreadth with which such a law may operate.

In 1998, the South African Law Commission (SALC) began a project to review the existing law on the monitoring and interception of communication and make a number of recommendations for its reform (89). This section briefly reviews the most far-reaching of the proposals to buttress the assertion that technological developments, coupled with the new intended application of these laws, contribute to questions of constitutionality. The proposals introduce a range of measures that can be clustered into two areas: application of the law and the cost of surveillance (90).

The main proposal requires that no telecommunication service may be provided which does not have the capacity to be monitored (91). Existing services lacking surveillance capability will be have to acquire the necessary facilities for it. All costs associated with such surveillance, including investment, technical, maintenance and operating costs, must be carried by the telecommunication-service provider. The proposals create an obligation on service-providers to assist in the surveillance not only of ‘conversations’ but also of ‘communications’, which is a much broader notion that encompasses speech, music, data, text and visual images. This would take into account the full range of communication services available on all distribution platforms.

The SALC has also suggested that the definition of ‘serious offence’ be expanded to include compelling national interests of the Republic in addition to those presently included as serious offences (92). It has also proposed that the existing proviso that the serious offence has to be committed over a lengthy period of time be deleted and that the ‘interests’ of the Republic be inserted to expand on the criteria constituting the security of the Republic. This only serves to strengthen assertions of vagueness mentioned above. In line with similar measures in other jurisdictions, the SALC has also proposed that all telecommunications service providers keep ‘registers’ for both contract and pre-paid customers of their identities and addresses (93). Panopticon-like in operation, an amendment will require the army, police and national intelligence to establish surveillance centres to lawfully monitor communications. This will be developed at the state’s expense, but cost-sharing agreements with industry are not to be excluded. A recent announcement by the British government to build a central system to monitor all the Internet traffic in the United Kingdom estimates that the cost to British Internet service-providers will reach £30 million in the first year (94). Obviously, there is substantial controversy as to how this cost should be structured and whether it should be shared with the government. At very least, all British ISPs will have to carry the cost of a mandatory connection to the centre through dedicated lines (95).

The SALC’s stated object of amendments to the surveillance law is again the combating of organised crime, terrorism and drug trafficking. On a constitutional level, the proposals do very little to enhance the protection of privacy for either individuals or the service-providers required to assist with surveillance (96). The proposals in addition suggest that the procedure may be dispensed with if a judge considers any case sufficiently urgent (97). This flies in the face of both extant case law and the very motivation for the original amendment to the principal Act: the expansion of privacy rights. Arguably, then, the proposals also add strength to the above argument of overbreadth. Through the use of the definition of ‘telecommunication service’ in the Telecommunications Act, any entity providing a telecommunication service for which a licence is required falls within the ambit of the Act (98). The proposal to expand the definitions contained in the Act to include all communications and messages, including e-mails, implies that every communications-network system, regardless of size and service, is intended for inclusion. The lack of a ‘common carrier’ defence in South African law, a legislative inoculation against liability for acts by third parties using a network, where the network could not reasonably have any knowledge of those acts serves to bolster this line of reasoning. Notwithstanding the above, it is likely that, given the current crime rates in the country and the potential applications of technology to crime, surveillance laws will withstand constitutional scrutiny. The need, however, remains to reduce the scope of privacy dilution as much as possible for users and subscribers on the networks. Other concerns regarding the proposals can be clustered into three corresponding areas: that the cost implied places an undue burden on service providers and that this cost will translate ultimately into higher costs for consumers; that the amount of client or subscriber information required by service providers is excessive and may lead to abuse; and that service providers will become de facto state auxiliaries. Ultimately, the most delicate act of balancing of rights is required to provide equilibrium between individual rights and state interests.

‘I might have been a goldfish in a glass bowl for all the privacy I got.’ (99)

Historically, the shift from primitive communities to modern cities and the creation of the new society have brought with them new threats to privacy. Criminal-investigation techniques have also improved with the development of technology. World War II and technological spin-offs from the Cold War and the post-war period of increasing empirical research by social scientists have added additional impetus (100). On a sociological level, the notion of the ‘social contract’ as perceived by Thomas Hobbes has played a contributory role. In Leviathan (101) the Hobbesian man lays down his arms and his rights to the sovereign, in order to empower the sovereign completely. This original notion of the ‘social contract’ has application to modern-day police enforcement, whereby, in order to protect citizens (and privacy), police powers are consensually increased (102). Over the years, there has been a colossal and universal ‘buy-in’ to the need for electronic surveillance by government and industry for security reasons, by a collective universal unconscious labouring under the misapprehension that only ‘wrongdoers’ are scrutinised (103). Simultaneously, individuals recognise and zealously guard the view that the people next door should not know what goes on in another’s home, the inviolable space and that telephone tapping and other invasions of privacy are abhorrent.

Yet, whilst enjoying the exposure of the ‘wrong-doer’ in the mainstream media, perhaps one of the most dangerous of all threats is the global voyeurism endorsed at all levels. The need for constant sources of accurate and unbiased information has led to twenty-four-hour news channels that allow us to observe war, famine and inhumanity unfold on our screens. As if non-fiction is not sufficient, we recreate it in fiction, in books, movies, cartoons and magazines (104), and invent fantasy and futuristic stories about global spy networks and international surveillance. In so doing, whilst we exercise another invaluable right, that to freedom of expression and the media and foster the human need for creativity, we indirectly romanticize and endorse the contexts in which surveillance and monitoring takes place. Essentially, we allow the simultaneous criticism and veneration of such practices. Of course, the ‘social contract’ does not clearly raise the question of from whom the citizen ought to seek protection. What Hobbes could not possibly imagine is that the technological Leviathan may become more powerful than both individuals and the sovereign combined. Per contra, the evolution of a critical judicial system separate from the state as a concept allows us the mechanism to ensure that, whilst this situation exists in culture, it is not endorsed in law. Given the spectre of potential abuse and invasion of rights, coupled with impending technological developments, legislation that allows interception and monitoring of communications has to be stringently examined and even more stringently applied, if it is to enjoy an ongoing constitutionally valid status.