Striking a balance between the secrecy of online communication and online criminal investigation in South Africa

Abstract

In the Republic of South Africa (‘RSA’), there are exponentially increasing and indeterminable consequential risks and breaches involved in the spontaneous and indispensable personal, official and general anatomic uses of the quicksilver, complex and delicate conscriptive, interoperable, non-compartmentalised and non-passworded compartmentalised online communication devices, technologies, networks, applications, and services. These risks and breaches result in a disequilibrium in the following antithetical legal vector argument. On the one hand, these risks and breaches are attributed to the non-recognition, and inadequate protection of the independent and unique right in online communication, the concept of which originates from the jurisprudence of the broad gamut of the right to privacy. On the other hand, these risks are exacerbated by the increasing, unrestrictive and perpetual techno-legal abuse of online communication by law enforcement agencies or officers (‘LEAs’ or ‘LEOs’) of the alternative conduct of the covert online criminal investigation (‘OCI’) of serious offences, arising from the dearth of and non-compliance with the regulation for the conduct of an OCI. This dual study clinically examines the irreconcilable conflict between the protection of the right in online communication and the public criminal mandate of the State to conduct an OCI of serious offences. Firstly, this study investigates the existence of the levels of risks involved in the conscriptive, interoperable, non-compartmentalised and non-passworded compartmentalised continua of privacy interests in online communication, requiring a corresponding protective and secure regime in the conduct of an OCI. Secondly, it probes into the various substantive and procedural thresholds required in the limitation of the right in online communication when conducting an OCI. Lastly, it examines the mechanisms for institutional and structural independence, competence, due process, separation of powers and checks and balances in the conduct and oversight of the conduct of an OCI in the RSA. Consequently, the examination of the above issues reveals the absence, inadequacy of, and non-compliance with the substantive and procedural constitutional, legislative and policy framework that caters for the protection of the right in online communication and the conduct of an OCI in the RSA. Accordingly and specifically, this study proposes that the RSA adopts an adequate constitutional and single legislative framework to address the contemporary societal techno-legal tapestry in the conflict between the right in online communication and the conduct of an OCI of serious offences in the RSA as follows. Firstly, it is imperative to unequivocally, in the legal framework in the RSA, including the Constitution, consider the existence of higher levels of risks and the simultaneous or consequential recognition of the higher levels of protection of the invaluability in online communication —including the emerging quantum computing— in contrast with non-online communications. This contrast hierarchically compels the unimpeachable protection of the independent right to the secrecy of online communication (‘SOC’), which is inadequately and incongruously protected as mere online privacy in section 14 of the Constitution of the RSA. Secondly, it is equally crucial to consider the application of or compliance with adequate substantive and procedural scientific threshold requirements to conduct an OCI of serious offences in the RSA. These requirements include the application of: online conscription; section 205 of the Criminal Procedure Act; ‘no server, but law’ principle as opposed to the U.S. ‘no server, no law’ principle; robotic and non-robotic OCI; ex-parte and non-ex-parte verbal and written quadripartite techno-legal individual and mass online criminal investigation of privileged and non-privileged online communications by ghost and non-ghost applicants; pre and post OCI data management procedure and admissibility of void and voidable evidence. Furthermore, it is of great importance to apply the all-embracing proportionality principle in section 36 of the Constitution in which this study, from a contrarian belief, classifies serious offences into six categories under four criteria and propounds some definite and functional Popoola mathematical and non-mathematical formulae in the standard of proof required to conduct an OCI, the procedure of which should be incorporated in a legislation. Thirdly and finally, it is of utmost significance to, in the legal framework in the RSA, including the Constitution, consider the application of or compliance with safeguard mechanisms in the conduct of an OCI. These mechanisms are to ensure the inviolability of the principles or requirements of structural and institutional independence, competence, due process, separation of powers and checks and balances in the conduct and oversight of the conduct of an OCI of serious offences by LEAs or LEOs and other stakeholders respectively.