“Eerie Reminders of a Past We Thought We’d Put Behind Us”: Jane Duncan on (Her New Book on) State Surveillance in South Africa

Interview by Nick Mulgrew

Jane Duncan is one of South Africa’s foremost experts on freedom of expression and its intersections with civil society and our everyday ways of life. A professor in the Department of Journalism, Film and Television at the University of Johannesburg – and formally Executive Director of the Freedom of Expression Institute – she is now the author of the new book Stopping the Spies: Constructing and resisting the surveillance state in South Africa. In it, she assesses the relevance of Edward Snowden’s 2013 revelations about international state surveillance (by bodies like the United States’ NSA) for South Africa and South Africans.

In doing so she questions the extent to which South Africa is becoming a surveillance society governed by a surveillance state. Duncan challenges members of civil society to be concerned about and to act on the ever-expanding surveillance capacities of the South African state. Is surveillance used for the democratic purpose of making people safer, or is it being used for the repressive purpose of social control, especially of those considered to be politically threatening to ruling interests? She explores the forms of collective action needed to ensure that unaccountable surveillance does not take place and examines what does and does not work when it comes to developing organised responses.

We sat down with Professor Duncan to discuss the scale and the specifics of the threat of surveillance to our lives, both personal and political – including social media and even e-tolls.

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Play it to us straight: should we be worried about state surveillance in South Africa? And if so, what’s the most worrying, or potentially worrying, thing we should be worried about?

Yes, we should be. We should be most worried about the fact that state and private surveillance capabilities are expanding all the time. However, there are few controls on these capabilities, which makes abuse almost inevitable. The technology has run far, far ahead of the law and policy, leaving ordinary citizens with rights such as privacy on paper only. In reality this right is being violated on a daily basis.

There’s a comforting lie that many of us tell ourselves – and perhaps this is more a delusion of the 90s-born generation – that, with the end of apartheid, the kind of invasive surveillance that was once trained on activists, organisers and artists went away and the state occupied itself with other things. We think that invasive surveillance is now predominantly the purview of overseas intelligence agencies and, increasingly, companies like Facebook, Twitter and Google, which facilitate much of our speech and work. But instead of being turned off, has the gaze of surveillance morphed and been turned onto the South African population-at-large?

Well, there’s no doubt that we’re light years away from those days when surveillance was used to repress the liberation movements with impunity. We have a law (Rica) that makes it illegal to spy on anyone’s communications, with limited exceptions. Any state agency wishing to tap someone’s cellphone or obtain their metadata, for instance, requires a warrant. But there’s certainly evidence suggesting that South Africa’s state spy agencies are often sticking their noses where they don’t belong, into the communications of journalists, for instance, in order to uncover their sources. The Right 2 Know Campaign, which I am part of, has documented many cases of trade unionists and political activists being targeted by these agencies in the course of their activism. State spy agencies have accused civil society organizations and social movements of fomenting regime change, to justify infiltration and surveillance of their activities. These practices contain eerie reminders of a past we thought we’d put behind us. Counterintelligence is particularly susceptible to abuses, as it focuses on measures to impede threats to national security.

Intelligence abuses are not peculiar to South Africa, though. In the UK at the moment, there’s an enquiry into ‘spycops’ or members of an elite police unit tasked with infiltrating social movements there. Some of these spycops have been so undercover that they’ve formed relationships with women in these movements, and even had children with them. After discovering how she’d been lied to by her supposed partner, one women complained, triggering the enquiry. That is what spy agencies the world over do; they spy, and not just on those who are genuine threats to public safety, but on those who the ruling elite consider to be politically threatening and inconvenient. Private sector companies often assist them in their spying efforts. However, it become more difficult for them to do so with impunity in the wake of the Snowden revelations, as communication users are pushing back and putting pressure on them to stop these abuses. South African companies haven’t caught up yet, though. They have not been pushing back enough to defend users’ privacy, although there are slight signs of this unquestioning acceptance changing.

How does state surveillance most broadly intersect with freedom of speech and expression, in your opinion?

Well, if people cannot be guaranteed the privacy of their communications, then they’re more likely to self-censor and not say controversial things online, out of fear of being spied on. This is especially so with journalists. Sources may avoid providing journalists with important information if they think their identities may be uncovered; as a result, journalists may be unable to write important stories about corruption and other abuses of power.

The democratic South Africa is a state, through its Constitution, that aspires to many (politically) liberal values, and attempts to uphold the sovereignty of the person. This, some people might argue, would include an unassailable right to privacy. Surveillance, however, is necessary to make sure the democratic project is protected. Obviously there is a difference between, say, monitoring message boards or public fora that promote extremism, and tracking random people’s movements and utterances – but where does the balance lie? Is it in making sure that the varying strands of surveillance do not converge?

If there are compelling reasons to intercept communications, then the right to privacy can and should be limited. But the limitation should be in terms of a law of general application; it should be for compelling purposes, and the agencies that seek to intercept communication should not do so without a warrant. The law should spell out the circumstances in which communications may be intercepted, and spell out the grounds for the issuing of a warrant. It should also make it clear that interception is an investigative method of last resort. Judicial processes that consider interception warrants should incorporate the adversary principle: that is, the judge who decides on whether or not to grant an interception warrant should be assisted by a public advocate who represents the interests of the communications user, to ensure that there is an adversarial element in the process. Otherwise the judge has to take the applications from intelligence agencies at face value, which is the case with Rica, and which makes the process constitutionally suspect.

Rica also lacks user notification, which is perhaps the most important check on surveillance abuses. In other words, once an investigation reaches a non-sensitive stage, people whose communications have been intercepted should be informed about the fact their privacy has been violated. So if the warrant was granted for invalid reasons then they can bring the guilty agency to book.

In the case of journalists, the grounds for the issuing of warrants should be even more tightly controlled. Mass surveillance, or surveillance where there isn’t a reasonable suspicion of criminality or a threat to national security, cannot, as a matter of principle be justified. If these basic principles are adhered to, then I’m confident that a reasonable and sensible balance can be struck between public safety on the one hand, and privacy on the other.

Surveillance manifests in our society in many ways, many of which are visible, such as biometrics and CCTV, and many of which are unexpected or overlooked. You have written before on the subject of locational surveillance and e-tolling, which you have said is a “major gap” in public discourse surrounding a subject that is controversial for many reasons. Would you like to expand on this here?

Well, it interests me that public outrage has focused on the cost aspects of the e-tolls system, but not on the privacy aspects. Locational privacy is an important element of privacy rights; that is, you have a right to privacy in terms of your movements. Imagine if a political activist or a journalist were unable to assert their privacy rights; they could be tracked while leaving protests or after having met with sources, which threatens not only media freedom but political participation and democracy itself. What intrigued me about the e-toll system that was rolled out in Gauteng, was that the most privacy insensitive system was rolled out. There are other systems that have been piloted elsewhere that allow people to pay for e-tolls without their identities ever being linked to their movements; these system incorporate what has come to be know as privacy by design. These options do not appear to have been considered in Gauteng.

How can people effectively organise against what you call “unaccountable surveillance”? I say ‘effective’ because I’m sure there are many ineffective ways, like wearing a balaclava everywhere, and because there are many things (public bodies, politicians) that we either fail to keep or refuse to be accountable.

Organisation has to take place on several levels: individual, social, cultural, political and economic. At the individual level, people need to protect themselves against unwarranted surveillance. People should, where possible, use encrypted communications, reduce location tracking through travelling with Faraday bags (especially journalists) and using Virtual Private Networks and onion routers such as TOR. Signal and Telegram calls are much safer than ordinary voice calls.

On the social level, check your privacy setting on social media, or even better, don’t use social media if you work on particularly sensitive issues. On the cultural level, avoid oversharing, and recognize the importance of face-to-face communications. Ask yourself, why do I want to share information and what are the benefits versus the risks? These questions are important to get people thinking about how and why they participate in their own surveillance, important questions if we are to encourage people to change their online behaviour.

On the political level, people need to organize around privacy and surveillance violations, linking these practices to broader abuses of power and showing how they are used to maintain power imbalances in society. Data protection and privacy need to become basic democratic demands, indispensible to democracy. They should also be articulated, not as elite rights of the digitally connected, but as rights that broader society must enjoy. Privacy must become an electoral issue.

On the economic level, people must begin to demand that communications must be organized differently; that it is antidemocratic for a few companies to dominate the media and communication landscape. People must demand that anticoncentration rules are enforced, and support communication platforms that put people and their right before profit and data exploitation.

It is important for people to realise that another communication system is both possible and achievable, and in this digitally connected world, people really do deserve more than what they are being offered by the likes of Facebook, Google and Microsoft.