By Cindy Cohn
The High Court in South Africa has issued a watershed ruling: holding that South African law currently does not authorize bulk surveillance. The decision is a model that we hope other courts, including those in the United States, will follow.
Read the decision here.
As an initial matter, the South African court had no trouble making a legal ruling despite the obvious need for secrecy when discussing the details of state surveillance. This willingness to consider the merits of the case stands in sharp contrast to the overbroad secrecy claims of the U.S. government, which have, time and time again, successfully blocked consideration of the merits of bulk surveillance in open, public U.S. courts. The South African court based its ruling on a description of the surveillance provided by the government – no more detailed than the descriptions the U.S. government gives of its own bulk surveillance — as well as the description in the judgment by the European Court of Human Rights case, Centrum For Rattvisa v. Sweden. And yet, in the U.S. this level of detail has been called insufficient to challenge bulk surveillance. South Africa is not an outlier. As the amicus brief by the Center for Democracy and Technology and the Open Technology Institute explains in our Jewel v. NSA case, governments of the United Kingdom, Sweden, Germany, the Netherlands, Finland, France and Norway have all openly discussed bulk surveillance that they engage in, with conversations in both legislatures and open courts, including the European Court of Human Rights.
The South African court looked to whether there were any current South African laws that authorized bulk surveillance. The court rejected the government’s claim that bulk surveillance was authorized by general language in South Africa’s National Strategic Intelligence Act which, in several places, authorizes the government “to gather, correlate, evaluate and analyze domestic and foreign intelligence.” The Court’s response is direct and refreshing: “What is evident is that nowhere in this text is there any instruction to mine internet communications covertly. ” Later, it confirms: “Nowhere else in the NSIA is there a reference to using interception as a tool of information gathering, still less any reference to bulk surveillance as a tool of information gathering.”
The court then considers several other potentially relevant statutes and finds that none of them clearly authorizes bulk surveillance. It concludes that if the government believes that bulk surveillance is so important, “the least that can be required is a law that says intelligibly that the State can do so.”
Ultimately, the court rules that more is needed:
Our law demands such clarity, especially when the claimed power is so demonstrably at odds with the Constitutional norm that guarantees privacy.
This is a great ruling for the people of South Africa, with a court firmly recognizing that: “no lawful authority has been demonstrated to trespass onto the privacy rights or the freedom of expression rights of anyone, including South Africans whose communications cross-cross the world by means of bulk interception.” It then declares that the activities are “unlawful and invalid.”
The South African ruling should be carefully reviewed here in the United States, both by the judiciary and by lawmakers. The U.S. law that the government relies upon for its bulk surveillance is similarly opaque. Section 702 provides: “Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (j)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.”
As in South Africa, the statute nowhere authorizes bulk surveillance. The most it authorizes is “acquiring” foreign intelligence information with other provisions requiring “minimization.” What it does not do with regard to bulk surveillance is, in the words of the South African Court, “say intelligibly that the state can do” bulk surveillance. As in South Africa, such vague provisions simply should not be sufficient to “trespass on the privacy rights or the freedom of expression of anyone.”
The decision by the South African court also sets an important precedent for how states that operate a wide-ranging surveillance apparatus should consider the privacy concerns of lawyers and journalists, a special protection that the U.S. government often ignores¾especially when it comes to surveillance at the U.S. border.
We look forward to the American courts recognizing what lawmakers, courts and governments around the world have already recognized – that bulk surveillance is not a secret and that courts are and must be empowered to decide whether it is legal.
Cindy Cohn is the Executive Director of the Electronic Frontier Foundation. From 2000-2015 she served as EFF’s Legal Director as well as its General Counsel. Ms. Cohn first became involved with EFF in 1993, when EFF asked her to serve as the outside lead attorney in Bernstein v. Dept. of Justice, the successful First Amendment challenge to the U.S. export restrictions on cryptography.
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