10 November 2016

How privacy rights interact with access to information held by the state

The apartheid regime consistently engaged in covert rudimentary spying on its citizens, be it stakeouts at residences, tapping phones or mapping out known associates. The chilling effects of this type of mass surveillance is evident in the many Security Legislation Directorate files that SAHA has obtained using PAIA. It is strange then that during the middle of a heatwave SAHA attended a dialogue hosted by the Legal Resource Centre (LRC) and the International Network of Civil Liberties Organizations (INCLO) where discussions again touched on the chilly effects of surveillance in the 21st century.

The highlight of the dialogue was a fascinating conversation between famous whistle-blower Edward Snowden and anti-apartheid activist Kumi Naidoo. The interesting lessons from the Snowden conversation was the need for human rights to be incorporated into software and hardware as a means to protect privacy. Especially in light of the fact that corporations - especially when the likes of google and other search engines - have commodified the personal information of their clients. In South Africa the law is fairly clear on limits on the use of certain types of personal information, that is, personal information that is limited to biometric data, identity numbers and other intimate factual personal data. But what about the personal data that is being recorded about a person's web personality? For example, the browser preferences of that person, their social media usage trends and online shopping inclinations to name a few.  The simple answer is, our laws do not seem to expressly deal with personal information of this kind. Snowden questioned why users of social networks are not provided with the option of downloading data about themselves from social networks and given the oportunity to have it removed at any point of interaction with the social networks. Furthermore, he pointed out that service providers do not actually need all the data they collect about consumers in order to be able to provide a good service, therefore limiting the amount of data they have on consumers will not have a negative impact on their business.

However riveting the conversation with Snowden was, of significance too was the launch of a report entitled "Surveillance and Democracy: Chilling Tales from Around the World" (the "report"). The report comprises several accounts from states that have trampled on the privacy rights of individuals despite access to information laws existing in those countries. One such example from the report is South Africa, where it would appear that despite apartheid era tactics being shunned, the current government still employs mass surveillance techniques as a strategy to prevent a breach of national security. In the legislation that matters in this context - the Protection of Personal Information Act, 2013, the Promotion of Access to Information Act, 2000 and the Electronic Communications and Transaction Act, 2002 (ECTA) - there is no protection against the information being collected to profile, and produce statistics aimed at being traded. Rather, ECTA specifically permits the trade of profiles and statistical data in so far as there is no specific connection to a third person. The obvious problem is that profiling and statistical data has in the past been linked to racial discrimination and it is worrying that businesses are essentially allowed to profile users.

The essence of the accounts given by the INCLO Human Rights Activists about their states is that surveillance is no longer necessarily about keeping a close eye on terrorists, but rather it has evolved into surveying people who seek to increase transparency in their home nations - these are people such as bloggers and journalists. In Kenya, one of the countries represented in the dialogue, journalists and bloggers are being targeted by the government for merely discussing controversial subjects such as terrorism - this severely impacts on their freedom of expression. An example of this was the questioning of a journalist, Judith Akolo, in January 2016 by the Directorate of Criminal Investigations for re-tweeting a post from a blogger known for providing updates on security issues in Kenya. The surveillance of potential terrorist threats online would be justified where there is a legitimate basis for such monitoring; however, the shift to prohibiting expressive communications poses a threat to human rights and due process. This only seeks to create a culture of fear and censorship which does not foster the right to access information.