"We are contemplating to regulate this space," the State Security Minister David Mahlobo said recently about attempts to tackle crimes on social media platforms. This will be one of the moments historians refer back to when the state gave the middle finger to digital privacy and the free flow of information. Another such moment - perhaps more importantly - is when the Film and Publication Board informed Parliament of its intentions to regulate WhatsApp.
Policing these platforms will be hard enough, but the real concern lies not with the state's ability to clamp down on digital crimes. Rather, it lies with how these laws and tools can be abused.
Understandably, these laws are aimed at tackling serious crimes - child pornography, hate speech, fraud and even the distribution of utter fiction disguised as fact, among others. Most recently, the ANC also expressed concern in its policy discussion documents over cyber terrorism and a lack of skilled personnel to address these threats. One of the reasons cited to amend the FPB Bill was a “lack of online regulation to protect children and consumers from harmful and illegal content on social media platforms,” read the final impact assessment document on the bill. Acknowledging the state’s inability to protect citizens in the cyber world is one thing. Implementing these laws, however, is a whole different matter.
Public social media platforms such as Facebook, Twitter and Instagram already regulate their sites, to an extent. Sometimes posts are removed and in certain cases, users are blocked from the site. But they often refuse after considering a particular post. These cases tend to end up in court – which then makes the final judgement over what is appropriate and what is not depending on the particular country. Apple has also endured litigation after refusing the FBI access to a terrorism suspect’s iPhone.
How does the South African state intend to bend these international tech firms to adhere to South African laws? Different courts for different social media sites come to mind. But it ultimately ends in a stand-off between authorities and the digital giants – who themselves never hesitate to justify their actions with democratic values. Nevertheless there is a need to protect South Africans from cyber criminals.
As Mahlobo put it himself: “Even the best democracies, that are revered, they regulate this space.” Included in this list is the poster boy of democracy, the USA.
A recent publication by WikiLeaks, named Vault 7, reveals the CIA has been hacking everything from Windows and Android to iPhones and Samsung Smart TVs. The publication consists of more than 8700 documents – mostly of code – revealing the CIA’s hacking methods.
It also reveals the CIA’s techniques to “bypass the encryption of WhatsApp, Signal, Telegram, Wiebo, Confide and Cloackman by hacking the "smart" phones that they run on”. Through this, the US government is able to intercept all the content on these forums, before the information is encrypted.
This dispels the notion that users’ privacy is assured by WhatsApp’s end-to-end encryption, which it implemented a year ago. It also dispels the notion that the South African state won’t be able to monitor encrypted messages for whatever reason.
In order to clamp down on what might be categorised as illegal on public platforms, users simply need to report a public post to the relevant authority (as is already the case). Those institutions could also follow trending topics or any inappropriate content that might go viral (depending on how limited their capacity, these methods would be fairly easy). But how do they plan on doing the same with WhatsApp, a private social network? This would include private messaging platforms on networks such as Twitter or Facebook.
Will the state merely send every single WhatsApp message through a computer looking for key words, or will hundreds of government officials actually read the messages? If so, how would the relevant authority know which users are engaging in illegal activity? What justifies them intercepting my private communications only to later find there was no concerning information exchanged? What assurances do I have that any communication – albeit legal – will not be used against me as a citizen, government official, opposition politician or journalist?
Increasing surveillance capabilities often result in unwarranted interception of private communication. Mahlobo himself highlights the need for the state and citizens to work together to ensure online users’ security, while also not infringing on their human rights. These remarks however are far too convenient given the advanced stages the bills are in.
The state will have to emphasise transparency and proper oversight. It will have to clearly outline what ‘illegal activities’ entail and how it defines security.
Does the state view political dissent as fake news? Will it prosecute reporters for publishing articles it considers inaccurate or damaging? Could it target political commentators? Will criticism from opposition parties warrant the interception of Mmusi Maimane or Julius Malema’s WhatsApps – with the ANC government coincidentally securing political ammunition in the process? Given the current perception that the state is already abusing its surveillance capabilities, the trust deficit is only set to widen as soon as surveillance is further justified by new legislation. And democratic security will come at the expense of democratic rights.