Greatly Undermining Privacy Rights – Part 2 & More Latest News Here – Up Jobs

• Frederico Links

Mass surveillance enabling data-retention schemes have been declared unlawful and unconstitutional in some places, yet Namibia is moving ahead.

CONFIDENTIALITY and anonymity, the central tenets of whistleblower protection, and the roles of lawyers and journalists in ensuring these principles are sacredly upheld, were core messages at a 9 August training workshop in Windhoek on whistleblower rights and protection.

The workshop took place at the same time the Communications Regulatory Authority of Namibia (Cran) was conducting a media and social media campaign, and a countrywide roadshow, encouraging people to register their SIM cards in preparation of the operationalising of mandatory SIM card registration and data-retention regulations from 1 January 2023.

In one of its social media campaign materials on 10 August, Cran stated of SIM card registration, and data retention: “SIM card registration is designed to protect mobile phone users – not to spy on them.

“It is an important tool for preventing phone-based fraud, identity theft and other criminal activities.”

This Cran campaign statement is not entirely true, for the SIM card registration and data-retention regulations are for Part 6 of the Communications Act of 2009.

Part 6 is solely about enabling state surveillance or the spying on mobile phone users through interception and monitoring of their communications.

And this has important implications for whistleblowers, their lawyers, and the journalists they interact with, as well as other mobile and internet users for whom anonymity and confidentiality are important.

The SIM card registration and data-retention measures collectively mean confidentiality and anonymity in telecommunications are effectively eradicated.

In other words, as from 1 January 2023, telecommunication service providers will track, gather and store all the communications data of everyone talking, posting or typing on their services.

Every active Namibia-registered mobile number or internet connection will be permanently visible to and data retrievable by national intelligence or law enforcement.

This sort of indiscriminate mass surveillance means whistleblowers and anonymous sources of journalists could easily be identified, or lawyer-client confidentiality could be breached, or even doctor-patient confidentiality intruded upon.

THE AMA-BHUNGANE VERDICT

This is precisely the sort of mass surveillance that was declared unconstitutional in South Africa in February 2021.

In a case brought by the investigative journalism initiative amaBhungane Centre for Investigative Journalism, the South African constitutional court declared that the data-retention scheme through which mass surveillance was perpetrated by the South African State Security Agency (SSA), under the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (RICA), was unlawful and invalid because it was not prescribed by the law.

The constitutional court went further in stating that even if such a mass surveillance scheme would be drafted into the law, that still would not mean it would be lawful or constitutional.

Importantly, the court ruled that Rica failed to “provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist” and inserted provisions into the law that state that a judge authorising interception “may do so subject to such conditions as may be necessary, in the case of a journalist, to protect the confidentiality of her or his sources, or, in the case of a practising lawyer, to protect the legal professional privilege enjoyed by her or his clients”.

The court also ruled that all subjects of communications surveillance have to be notified of such surveillance within three months, or no later than two years after the surveillance has been concluded.

The amaBhungane judgement has reverberated around the world and has significance for Namibia.

The lack of such safeguards and strong oversight and transparency mechanisms to prevent surveillance abuse are central to the criticisms levelled against Namibia’s emerging mass surveillance scheme under Part 6 of the Communications Act.

Earlier this year, Botswana took a different route, building in safeguards and a strong oversight and transparency mechanism with its criminal procedures and evidence (controlled investigations) bill, which seeks to prohibit state surveillance abuse by creating a committee, headed by a judge, “which will give oversight on interception operations and undercover investigations and receive complaints about any misuse of such powers”.

The committee would also “report annually on its work, which the minister of defence, justice and security must table in Botswana’s National Assembly”, reported South Africa-based consultancy firm ALT Advisory recently.

GLOBAL THREAT

Such mass surveillance schemes have been flagged internationally as a violation of human rights.

On 17 December 2018, the United Nations General Assembly passed a resolution, titled ‘The right to privacy in the digital age’, in which it expressed that it was “[d]eeply concerned at the negative impact that surveillance and/or interception of communications, as well as the collection of personal data, in particular when carried out on a mass scale, may have on the exercise and enjoyment of human rights”.

The resolution called on states to “establish or maintain existing independent, effective, adequately resourced and impartial judicial, administrative and/or parliamentary domestic oversight mechanisms capable of ensuring transparency, as appropriate, and accountability for state surveillance of communications, their interception and the collection of personal data”.

Such “independent, effective, adequately resourced and impartial” oversight mechanisms are not catered for in any of Namibia’s surveillance-enabling laws or regulatory frameworks.

In November 2019, the African Commission on Human and Peoples’ Rights (ACHPR) adopted the revised ‘Declaration of Principles on Freedom of Expression and Access to Information in Africa’.

The declaration makes pointed reference to the privacy violating threat of mass surveillance in principles 40 and 41.

Principle 40 states: “1. Everyone has the right to privacy, including the confidentiality of their communications and the protection of their personal information. 2. Everyone has the right to communicate anonymously or use pseudonyms on the internet and to secure the confidentiality of their communications and personal information from access by third parties through the aid of digital technologies.”

In the same vein, principle 41 states: “States shall not engage in or condone acts of indiscriminate and untargeted collection, storage, analysis or sharing of a person’s communications.”

And yet, this is exactly what is going to be happening in Namibia as from January 2023.

In 2020, the European Union’s highest court, the Court of Justice of the European Union, found that mass surveillance enabling data-retention schemes in the United Kingdom (UK), France and Belgium were violating the right to privacy and had to be limited by law.

In July 2022, following another European court of justice ruling declaring data retention schemes unlawful, international periodical Politico reported: “Decision after decision, the European Court of Justice’s 27 top judges have fine-tuned their belief that mass retention of phone and internet traffic and location data violates fundamental EU privacy rights.”

The same could be said of the soon-to-be-operationalised SIM card registration and data-retention regulations, that they would violate Namibians’ fundamental privacy rights.

– Frederico Links is a Namibian journalist and researcher. This article was commissioned by the Media Policy and Democracy Project (MPDP), an initiative of the University of Johannesburg’s department of journalism, film and TV, and Unisa’s department of communication science.

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