The Right2Know Campaign has filed a high court application against MTN, Cell C and Telkom to get the operators to hand over details of when and how often they accede to requests from law enforcement and other government agencies under the Sim-card registration law known as Rica.

R2K said this information is critical to assess how the Rica legislation is being used or abused by authorities.

Warrants or “interception directions” issued under Rica compel network operators to provide access to the content of a user’s communication — interception of calls or messages in real time, or their call records, or their location, or any combination of these.

Vodacom is not party to the legal proceedings after it agreed to supply the information sought by R2K under a Promotion of Access to Information Act request. The other mobile operators have not done so, with MTN opposing the application and Cell C saying it will abide by the court’s decision.

Telkom has not responded by the deadline for notice to be opposed, though the company could elect to enter at a later stage.

Murray Hunter, organiser for secrecy and securitisation at R2K, said the organisation wants to assess the extent to which Rica is being used in South Africa to access people’s information and conduct surveillance activities. “There is a lack of transparency,” he said.

Though a report is tabled annually to the intelligence committee in parliament, it is submitted confidentially, and the information often takes a long time to be released publicly. Even when it is, it usually lacks crucial information, making it “useless” for oversight purposes.

Blanket secrecy

Hunter said that in the past, the operators have used a blanket secrecy provision — in section 42 of Rica — not to share any information with the public on Rica-related requests. Google, Facebook, Vodafone and other international companies regularly provide statistical information on the requests they have received, and it’s high time South African operators provided similar reports, he said.

“At the heart of this is whether Rica’s secrecy provisions prevent the networks from revealing how often they have to help the state spy on their customers. We say that the public has a right to know this information, and if Rica prohibits it, that prohibition is unconstitutional,” Hunter said.

“The bigger picture is that in South Africa, the telecommunications and Internet service provider industry has an opportunity — and quite possibly a responsibility — to move toward proactive disclosure of this information, in the way that we have seen international players do so in the post-Snowden era.”