A draft bill designed to amend the National Strategic Intelligence Act has been drawn up.
The Draft General Intelligence Laws Amendment Bill, a private member’s bill, was penned by the Democratic Alliance’s John Steenhuisen.
According to Mr Steenhuisen, intelligence-related legislation contains several “legislative lacunas” that can be manipulated or abused by elements of the State Security Agency.
If the lacunae are combined with certain shortcomings in the Regulation of Interception of Communications and Provision of Communication-Related Information Act, “such abuse actively threatens and imposes on the privacy of all South Africans”.
Amendments are proposed to the National Strategic Intelligence Act in order to provide that:
• the interception of communication may only be undertaken as a method of last resort;
• cooperation of the Agency with foreign entities be limited to specific jurisdictional limitations;
• the Agency only be permitted to collect signals intelligence in specific circumstances;
• the Agency may only disseminate information collected incidentally with other State authorities if so permitted by a designated judge or in a closed list of circumstances;
• any Agency official who fails to comply with the prescribed authorisation procedures be guilty of an offence.
The draft bill further seeks to amend the Intelligence Services Act of 2002 to provide for:
• the updating of this Act regarding which government components make up the State Security Agency;
• the nomination and consideration of candidates for the position of Director-General for the Agency with the objective of providing a list of candidates for consideration by the President in making such appointment.
The draft bill also seeks to amend the Regulation of Interception of Communications and Provision of Communication-related Information Act of 2002 to provide for:
• the inclusion and alignment of certain crucial definitions;
• annual judicial reporting by the designated judge to Parliament on interception requests;
• a judicial presumption against the granting of interception requests by the designated judge;
• annual reporting by government departments to Parliament on interception requests;
• the limitation of an electronic communications service provider’s liability in instances where it discloses information in accordance with the Act;
• the compulsory disclosure by an electronic communications service provider to a customer of interception requests made in respect of that customer;
• a minimum of three designated judges be appointed by the Minister.
The plan is to table the draft bill in parliament during the first quarter of 2019.
Comment on the proposed content of the draft bill, published in Government Gazette 42263, is invited within 30 days of the date of publication.