Intelligence Services Amendment Bill: Deliberations

Meeting report

The Chairperson announced that the Minister of Intelligence had indicated to the Chairperson that he would be able to attend a meeting next week, so the Committee needed to ensure that the meeting did not clash with the Cabinet meeting that was to take place. He noted that the legal adviser from the Ministry was ill, was not able to attend the meeting and therefore would not be able to clarify policy issues that the Committee had raised at the previous meeting. The Chairperson noted that perhaps the Committee secretary should write a letter regarding attendance of the members, particularly at the smaller Committees, and send to them.

Adv P Swart (DA) informed the Chairperson that Ms D Smuts was busy with legislation in the Portfolio Committee on Communications and would possibly not be available for further meetings.

The Chairperson noted that Mr I Vadi (ANC) was the Chairperson of that Committee and perhaps they should work out an alternative for those members.

The Chairperson asked the National Communications Centre (NCC) to assist the Committee to identify some of the issues in the Bill that was regarded as policy concerns.

Adv Swart also asked for the opportunity to mention vital issues. It seemed that there might have been a policy decision in terms of authorising the monitoring of communications that indicated that the Minister would be the authorising body as opposed to a designated judge.  It was also mentioned in Clause 2(d) that the Minister would authorise the target, and that the term ”target” was not clear and should be narrowed. He referred to the relationship between the Regulation of Interception of Communications and Provision of Communication-related Information Act  (RICA) and this Amendment Bill, and asked that it should be discussed.

Mr Loyiso Japhta, Executive Director: NCC, replied that the NCC was one the only intelligence agency in South Africa that was able to gather signals intelligence and was expressly established for that purpose. Cabinet approved the priorities of the NCC. The process would be that the NCC would devise its priorities and these would be presented to the Minister for consideration and approval. Once the Minister approved the priorities the NCC would then proceed to gather intelligence. The Minister did not approve every activity. He did however receive reports on the approved projects. There was a category of matters that were very sensitive and would require the Minister’s approval. He assured the Committee that those would be done always within the boundaries of the law. The spirit of that clause sought to ensure that there was appropriate Executive oversight over the activities of the NCC, although the Executive was not involved on a daily basis. The regulation on interception of communication broadly meant that the NCC did broad scanning of the signal environment without borders. They would pick up issues that were of interest to the country. To the extent that some of those things would have to be acted upon, this would principally be within the realm of trans-national crime. The information gathered from these signals would then be given to the law enforcement agencies (LEAs) and they would then petition a Judge for authority to the relevant parties to intercept communication. This petition would be granted if the Judge was satisfied on the facts and merits. 

Adv Swart asked if the NCC in its operations had the ability to input specific telephone numbers for anybody, locally or internationally, as a target, which would result in the communications to and from that number being captured. If it did have that ability, he asked on what circumstances, provisions or authority that information would be captured and how they would deal with it. Furthermore he asked if the NCC agreed that the Bill was descriptive enough in its operations.

The Chairperson indicated that at a previous meeting, when approaching these issues, the Committee had decided that they should ask the Minister why the provision was included and why it was formulated in that manner. This was one of the issues that the Minister would also be able to answer. The Chairperson therefore said that the NCC representative should not answer the question.

Adv Swart asked that the first part of his question be answered.

The Chairperson asked whether the NCC would be operating with warrants.

Mr Japhta replied that the warrants obtained from the Judge were principally around communications in the South Africa. The NCC had no jurisdiction over communication domestically. That warrant would be taken to the Office for Interception Centres (OIC) and network provider. The NCC only dealt with communication that was outside the borders.

The Chairperson wanted further clarification on the warrants.

Mr Japhta replied that what he was speaking of was a warrant that would be issued regarding domestic communications. If, in the application, mention was made of communication with someone outside the country the warrant obtained pursuant to the petition would then be referred to the NCC.

Adv Swart explained that if a LEA approached the NCC with an international number, without a warrant because the international number was communicating with domestic numbers, they would then scan and intercept communication emanating to and from the international number, and that might also include communication to and from a domestic number. Therefore the effect of the international scanning could be that domestic communication was being picked up, and the effect was that this was being done without a warrant. He asked if it was correct to assume that under no circumstances would a domestic number be given as a target from the LEAs, or if it was, that this was purely incidental, and whether the NCC would perform such a task without a warrant.

The Chairperson interjected and stated the member was asking the NCC to answer a question that may not be considered lawful. The Committee was dealing with legislation. The questioning was now going into operational issues, and he did not think that the question was fair.  

Mr Japhta replied that technically, the act of subscribing to any network provider was not exclusive to South Africans, There were people from other countries who were lawful subscribers to South African service providers, although they might be quite nefarious. NCC tended to go beyond just a number, and it was something that needed to be debated.

The Chairperson noted that it was a policy issue that the NCC became a separate spending agent from the National Intelligence Agency (NIA), and asked for further clarity. He also noted that there had to be some financial implications when the NCC became a separate entity from NIA. He asked that the NCC provide a breakdown of the possible financial implications.

Mr L Landers (ANC) thought that it was of concern there was “no financial implication” mentioned in the Bill. He added that when a change such as the one being proposed occurred, it was advisable to perform a costing exercise, or at least give an indication of the cost that the changes would involve.

Mr Japhta replied that the NCC had erred in suggesting that there would be no financial implications. He suggested that at the next meeting the NCC should return with an statement indicating the financial implications, or alternatively, if more time could be provided, it could give a more detailed breakdown at a slightly later stage. He suggested that the NCC should present the financial implications when the Minister attended the meeting. He also asked that perhaps that part of the meeting could be closed. The Minister would speak about the possible policy shift, and the establishment of the NCC of a stand-alone department ,which would be useful as the NCC and NIA had a dual mandate yet its spending agent gathered information outside borders.

The Chairperson said that the areas of policy would be clarified with the Minister. He asked that the Committee look at the clauses of the Bill.

Clause 1
Adv Swart wanted further clarification on Clause 1(b) and the definition of ‘foreign signals intelligence’ and he asked that it should be flagged.

Mr Alvin Khosa, Head of Legal Services: NCC, replied that in the previous meeting the NCC had stated that they would look at the concerns being raised by Advocate Swart and would find a way to correct this definition. The drafters would exclude domestic signals and had amended Clause 2. He asked that if the Committee was satisfied with the amendment, then there was no need to flag it.

The Chairperson remarked that the Committee was not dealing with that part of the Bill yet.

Ms Bongiwe Lufundo, Principal State Law Advisor, Office of the Chief State Law Adviser,  added that Adv Swart had raised this concern at a previous meeting. It was decided that Clause 1(b) would remain as presently worded, but that Clause 2(e) would be amended to address the concern. Clause 2(e) would then read:  “The NCC is prohibited from intercepting domestic communication or any communication that does not fall within the definition of ‘foreign signals intelligence’”.

The Chairperson still thought that the question should be flagged, and he suggested that instead of finalising Clause 2(e) at this point, the entire clause should be flagged. 

Mr Landers felt that Clause 2(e) should be placed as a stand-alone. This was because the clause wanted to address concerns and it informed what the NCC was not allowed to do.

Ms Lufundo replied that there was no other place where the clause could be placed as this was an Amendment Bill, and so the insertions into the principal Act should be in line with the existing framework of that Act.

The Chairperson disagreed, because headings could be created. The Member was stating that the clause was currently hidden and it should be more at the forefront. He suggested that subheadings and main headings could be inserted. He thought that the identification of the problem was reasonable. He suggested that the drafters give some thought to where the clause might fit better, or to using a different heading, and there were perhaps other clauses where it might fit. 

Clause 2
Adv Swart noted that Clause 2(b)(ii) used the phrase ‘to advance’ and he wanted an explanation on why that should be included.

The Chairperson asked if it really mattered what the clause stated, because there was already a prohibition clause that stated what the NCC could not do. There was a range of protections that would make that statement not so strong. 

Mr Landers felt that what was particularly important was the word ‘only’ in Clause 2(b). This ensured that the NCC could not go beyond that objective, and effectively restricted the NCC. If the argument was that it was too broad and then each of those sub-clauses should be assessed.

Mr Japhta replied that the clauses should be read together with the basic mandate of the NCC. The rights of people outside the Republic were as important as of those inside the Republic, but the clauses related to listening to people outside the Republic.  They were expanding the NCC mandate in terms of those with whom  the NCC needed to liase.

Mr Landers noted that Clause 2(j) was a penalty clause and similarly he asked that the drafters should look at making it a stand-alone clause. It had to be understood that if someone violated the clause that situation was provided for.

Clause 3: Amendment of Section 2A
Adv Swart wanted to flag Clause 3(d), regarding the minimum power of officials to refuse security clearances.

The Chairperson wanted an explanation regarding Clause 3(b) and the vetting process.

Mr Japhta replied that NIA did not have adequate capacity to vet government officials for security clearances. NIA determined that elements of vetting should be done in the various departments. For that purpose vetting field units would be developed and approved by NIA, so that all vetting would be consistent with the vetting that NIA does. If security clearance were required for secret or top-secret security levels, then NIA would be required to perform that task. This enabled NIA to coordinate vetting with intelligence agencies.

Mr Landers thought that perhaps it would have been tidier to have a Bill drafted solely for the NCC.

The Chairperson did not think that there was sufficient consideration given to how the Act would appear if the Bill was approved. The Bill would be more complicated if it was left as it was.

Clause 4: Amendment of Section 4
The Chairperson saw Clause 4 as adding the NCC as a member of the National Intelligence Co-Coordinating Committee (NICOC).

Clause 5: Amendment of Section 5
The Chairperson wanted clarity on the Clause 5. He said that this was making reference back to Clause 2(d) of the Bill and therefore the Minister would then appear to be making regulations in terms of that section.

Ms H Mgabadeli (ANC) replied that it was an important matter.

The Chairperson added that it was a clause that would have to be put to the Minister.

The Chairperson adjourned the meeting.