as the main findings of a research project I undertook for the Association for Progressive Communications (APC) on the impact of communications surveillance on journalists. Furthermore, during the course of this research, I represented the MPDP in a global network of privacy researchers and advocates, set up by Privacy International and including organisations from across the global South. Privacy International also raised funds from the International Development Research Centre to map the state of the right to privacy in several countries, including South Africa, and the MPDP undertook the research for this project. I have also drawn on this research, especially a monograph on privacy written by MPDP researcher Dale McKinley. The South African History Archive (SAHA) assisted with information requests to various state entities, leading to records being released by the Civil Aviation Authority, the City of Johannesburg and the South African Parliament.
There is much more to be done on this particular topic. I realise that many gaps exist in our understanding of the issues it addresses, including my own, but I hope that this book provides a basis for future explorations.
Jane Duncan
November 2017
‘I saw my final hour unfurl before me, I thought this was the end. I thought I’m finished, I’m finished. I was terrified. We must all have thought the same.’1 Julian Pierce, a journalist for the French radio network Europe 1, was inside the Bataclan theatre in Paris in November 2015, watching a live music show, when gunmen claiming to support the Islamic State for Iraq and Syria (ISIS) stormed the theatre and shot indiscriminately into the crowd. Eighty-nine people died in that attack, and a further 41 people were killed in other co-ordinated attacks around the city that night.2 It must be many people’s worst nightmare: becoming a victim of a terrorist attack simply for being in the wrong place at the wrong time.
Terrorist attacks have swept Europe in the past few years, with France being attacked repeatedly. I will discuss the politics of naming particular acts as ‘terrorist’ later in the book; for the moment, suffice it to say that I do recognise forms of violent political action that could be legitimately considered terrorist. Fearful citizens have looked to their governments to protect them from terrorist violence, and these governments have responded by increasing their intelligence and policing powers. In fact, intelligence work has become increasingly important to governments seeking to thwart terrorist threats, as it allows them to identify the culprits of these attacks and even prevent future attacks from taking place. They can also profile possible ‘persons of interest’, who might become terrorists in future. Gathering intelligence from human sources (or human intelligence, as it is known in the intelligence community) is expensive, time-consuming and often dangerous, as terrorist organisations could uncover spies in their midst, or these spies may provide unreliable information, or even be recruited as double agents. Given the drawbacks of human intelligence, more governments are turning to the surveillance of communications networks to acquire intelligence on terrorist activities and plans (what is called signals intelligence).
Yet, government surveillance programmes may not be motivated purely by the noble objective of protecting public safety. We have all become familiar with terms that describe a government that spies indiscriminately on its people in order to maintain its grip on power. George Orwell’s terse novel Nineteen Eighty-Four painted a chilling picture of an authoritarian society dominated by pervasive surveillance, and his character ‘Big Brother’ came to symbolise the horrors of such a society.3 Writing several decades later, Michel Foucault drew on the nineteenth-century British philosopher Jeremy Bentham’s plan for a ‘panopticon’ – a building that allows a single watchman to watch large numbers of people – as a metaphor for a modern society in which its subjects are made to practise self-discipline through the threat of constant surveillance.4 These terms have endured in the public imagination as descriptors of the power of surveillance and the dangers of its being undertaken on an unaccountable basis. In spite of the real and present danger of terrorist attacks in some countries, more people have become concerned about the dangers of unaccountable state surveillance and the impact that it may have on the fundamental human right to privacy. According to Article 12 of the United Nations (UN) Declaration of Human Rights, ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.’5 Clearly, arbitrary surveillance would threaten this right. However, opinion polls suggest that public opinion remains sharply divided on whether privacy is more important than national security.6
‘The idea that they can lock us out and there will be no change is no longer tenable. Everyone accepts these programmes were not effective, did not keep us safe and, even if they did, represent an unacceptable degradation of our rights.’7 Whistleblower Edward Snowden made these comments two years after leaking thousands of NSA documents about secretive mass communications surveillance programmes. The NSA is the United States government agency responsible for communications surveillance for intelligence purposes. These leaks, drip-released in collaboration with journalists such as Glenn Greenwald and Laura Poitras, led to the journalists blowing the lid on secret government spying programmes that had moved far beyond their original stated purpose of fighting terrorism and violated the privacy of millions of innocent people in the process. While the Snowden documents focused mainly on US and UK government programmes, they also revealed information about the close co-operation with other ‘Five Eyes’ countries. Referring to a coalition of countries co-operating with one another to fight terrorism and other national security threats, and dating back to the post-World War II period when Western hostility to the Union of Soviet Socialist Republics (Soviet Union or USSR)was at its height, the Five Eyes coalition consists of the US, UK, Australia, New Zealand and Canada. While little is known about the nature of their co-operation, what is known is that they co-operate around the sharing of intelligence, including the interception and analysis of signals intelligence.8
The Snowden revelations created a huge public outcry, and pressure from privacy advocates forced the US government to concede reforms of some of its programmes. Yet, critics have argued that these reforms are not as significant as they appear, as they leave most of the surveillance programmes revealed by Snowden intact. According to Privacy International and Amnesty International, many governments are continuing or even expanding their mass surveillance capabilities.9 The intractable nature of mass surveillance is unsurprising: it has become big business. State and consumer surveillance programmes have converged to the point where it has become difficult to separate the two. The state relies on private security companies to store huge datasets in the cloud, while the private sector commercialises these datasets for profit by selling them to other companies, mainly advertisers. The state and the private sector operate in a charmed circle, where intelligence is used to advance countries’ commercial interests, especially for imperial powers that risk losing their dominance in global affairs; as a result, more governments are including the protection of commercial interests in their definition of national security.10
As the importance of signals intelligence has evolved, regulatory regimes have developed to give this form of surveillance a semblance of public accountability, but these regimes are often inadequate. For instance, in 1978 the US government established the Foreign Intelligence Surveillance Court (FISC), set up in terms of the Foreign Intelligence Surveillance Act (FISA), to hear applications for communications surveillance warrants for the interception of communications between foreign powers and agents of foreign powers operating in the US, which may include US citizens too. The surveillance of foreign communications is authorised under Executive Order 12333, which is not subject to judicial review and which may also involve the collection of communications records of US citizens in contact with overseas targets. While the existence of the FISC suggests that due process is followed in the interception of foreigners’ communications, court proceedings are secret and the vast majority of applications are approved. This is largely because the application process is not adversarial in that the grounds for application are not interrogated by counsel for the defence, as would usually be the case in open court. Furthermore, the grounds for the issuing of warrants