A call for accountable communications surveillance

Any person who intercepts communications without a warrant commits a criminal offence.

The legal framework for interception of communications recognises that interception of communications is highly intrusive hence the requirement that an investigation officer applying for an interception warrant must furnish information to the court on whether other less intrusive investigative procedures have been used and failed to produce the required evidence.

These requiremts highlight the need for accountability in the use of communications surveillance by law enforcement agencies. Accountability demands that an institution must be obligated to answer questions regarding its decisions or actions and there must be means for enforcing consequences for failing to be accountable.

The African Commission on Human and Peoples' Rights (ACHPR), in its Declaration of Principles on Freedom of Expression and Access to Information in Africa, is instructive on principles that must underpin a law for interception of communications that will make those responsible for interception acoountable.

The Declaration provides at principle 41 that States shall only engage in targeted communicatons surveillance that is authorised by law that conforms with international human rights law and standards. It further provides that the law should have adequate safeguards to guard against abuse and expressly recommends the following: i) Prior authorisation by an independent and impartial judicial authority; ii) Due process safeguards; iii) Specific limitation on the time, manner, place and scope of the surveillance; iv) Notification of the decision authorising surveilance within a reasonable time of the conclusion of the surveillance. v) Proactive transparency on the nature and scope of the use of surveillance; and vi) Effective monitoring and regular review by an independent oversight mechanism. In March 2024, a US-based online investigative agency, Recorded Future, revealed suspicions that the Predator spyware is in use in Botswana. Predator is a sophiscticated mercenary spyware designed for use on both iPhones and Android devices. The spyware gains unfettered access to a device's microphone, camera and all stored or trasmitted data, including contacts, mesages, pictures and videos, without the user's knowledge. The spyware is highly intrusive and is reported to have been succesfully used against individuals across various sectors, including media practitioners, in a number of countries across the world. The Recorded Future report notes suspicious activity involving website domains that mimic two local well-known news sources, Mmegi Online and and the online edition of the Botswana Guardian and Midweek Sun.

The report does not say who is using the spyware or whether the surveillance is authorised in terms of the relevant law. Reports of the possible use of the Predator spyware in Botswana are a cause of concern because of its adverse effect on the enjoyment of the rights and freedoms of the individual.

The use of the spyware against the media and media practitioners not only infringes upon the latter's right to privacy, but also on freedom of expression and media freedom. The knowledge or suspicion of being subjected to surveillance restricts the capacity of the individual to freely excercise their right to freedom of expression.

The fear of surveillance inhibits an individual to express themselves freely and also inhibits media sources who wish to remain anonymous to freely contact media practitioners. The right to freedom of expression is guaranteed under Section 12 (1) of the Constitution of Botswana. The right protected under the provision covers not only the substance of what an individual wishes to communicate, but also the form in which a person wishes to express themself. The Constitution thus protects the right of a person to excercise their freedom of expression as a journalist.

The provision also protects media freedom. Although, not expressly mentioned in the provision, courts of law have authoritatively held that media freedom is implicitly protected as an aspect of freedom of expression and it applies to both newspapers and broadcasters.

The protection of media freedom under the Constitution imposes two obligations on the State. There is the negative obligation, the essence of which is that, the State shall not unduly interfere with the invidual's right to freedom of expression. Section 12 (2) gives three conditions that any limitation on freedom of expression must comply with to be lawful. These are: (i) that the limitation must be done under the authority of the law; (ii) shown to protect one or more of the listed interests which include, defence, public safety and public order; and, (iii) must be reasonably justifiable in a democratic society.

There is also the negative obligation which requires the State to create an effective system for the protection of journalists to ensure a favourable environment for participation in public debate by all persons, enabling them to express their opinions and ideas without fear. The Declaration of Principles on Freedom of Expression and Access to Information in Africa states at principle 19 that the protection of freedom of expression imposes an obligation on a State to guarantee the safety of journalists and other media practitioners. The Declaration calls upon States to prevent attacks on media practitioners. The attacks come in different forms and include, intimidation, threats and unlawful surveillance undertaken by State and non-State actors. The report about the use of the Predator spyware against the two news sources raises concerns of possible violation of media freedom. One wonders why the suspected surveillance targeted these two media sources. Even if the report is not true, it is a stark remainder to media practitioners of the ever present danger of surveillance and forces many of them to self-censor. And if the report is true, if it were not for the disclosure by Recorded Future, it is highly unlikely that the two media sources woud have ever known that they were at some point subjected to surveillance. It is contended that the knowledge that one may be subjected to surveillance and that they will never know about this intimidates some journaists and forces them to avoid reporting on certain stories. This fear of surveillance creates an unsafe working environment for media practitoners.

The perinent questions regarding the possible surveillance of Mmegi Online and the Botswana Guardian and Midweek Sun online are, was the monitoring done in accordance with the law and who was monitoring them and for what? The bleak picture painted above is a result of inadequate safeguards provided in the legal framework regulating interception of communications in the country. One of the safeguards recommeded by the ACHPR is proactive transparency on the nature and scope of the use of surveillance in a State. Accoutability requires willingness of a government to be transparent about its procurement of spyware and taking responsibility for their use. The knowledge of the type of spyware in use would assist the courts in determing the question of proportinality when dealing with an application for an interception warrant. The use of surveillance technologies must ensure a fair balance between all interests concerned and rights at stake. The Predator spyware is reported to have capacity to access every message, call, picture and password in a target's device.

A judge faced with an application for an interception warrant will have to make a decision looking at the interests the interception purports to protect and the extent of violation of an individual's rights if the warrant is granted. The principle of propotionality requires that where the extent of the violation is serious, the court must insist on there being adequate safeguards to guard against abuse. Proactive transparency in the acquisition of spyware is thus crucial to understanding its capabilities and what safeguards are needed to be in place to avoid unjustified excessive violation of an individual's rights and freedoms. The State of Botswana needs to be transparent about the spyware is using. Such transparency will generate debate on the intrusiveness of the spyware and what safegusrds are needed to guard against its abuse. Surveillance by nature takes place in secrecy to ensure its efficacy. This makes surveillance susceptible to abuse. Accountability in the use of surveillance requires the adoption of of measures that will minimise the risk of abuse emanting from the secretive nature of the process.

The answer to this is for the legal framework to provide for post-surveillance notification. This takes the form of a subject of surveillance being notified that they were subjected to surveillance when notification can no longer jeopadise the purpose. Post-notification serves two purposes, it affords the subject of surveillance to assess whether the interception was appied for and issued within the law. And, that challenges to illegally obatained interception orders will assist in discouraging abuse of the process. Post-notification is an important safeguard against the arbitray use of surveillance as it ensures that law enforcement agencies only resort to its use in those cases that they will be able to convincingly justify their actions to the public. Communications surveillance is no doubt a necessry and effective tool for intelligence and law enforcement purposes. It is equally true that surveillance is often abused to arbitrarily target critics of government and the media. Due to its negative impact on the enjoyment of the fundamental rights and freedoms of the individual, surveillance must be done in a legal environment that will fairly balance its use and protection of human rights. The report on the possible use of the Predator spyware on the media in Botswana is a clarion call for us to once again re-visit the legal framework regulating inteception of communications to determine whether it provides adequate safeguards against abuse. The use of spyware against the media in a democtactic state, especially in an election year, is worrying because of the media's role as facilitators of public debate and public watchdog.

This does not suggest that the media shoud not be subjected to surveillance in a deserving case, but what is important is that there msut be in place adequate safeguards against abuse. This article conludes that the legal framework for the interception of of communications has some loopholes that present opportunities for abuse. These loopholes create an unsafe working environment for jouralists and other media practitioners and thus violates media freedom. Parliament must urgently review the Crininal Procedure and Evidence (Controlled Investigations) Act, 2022 and amend it to provide sufficient safeguards that are in conformity with international human rights law. *TACHILISA BADALA BALULE (PhD), is Associate Professor of Law, University of Botswana

(This article is an output of a surveillance research project supported by the British Academy’s Global Professorship Programme through the School of Social and political Sciences at the University of Glasgow).