The Ministerial Review Commission on Intelligence has raised at least six concerns about the role the National Communications Centre (NCC) - the state snooping agency - will play once it becomes an independent intelligence agency in terms of legislation currently before Parliament.
It is unusual for government entities to raise concerns with Parliament about legislation as Cabinet approves draft laws before sending them to the lawmaker.
The commission consists of former National Assembly speaker Frene Ginwala, security sector expert Laurie Nathan and former safety and security deputy minister Joe Matthews.
In a 13-page submission to an ad hoc committee considering the National Strategic Intelligence Amendment Bill, the commission, established by intelligence minister Ronnie Kasrils two years ago, argues that many provisions governing the NCC are vague and open to abuse.
It adds that it has raised its concerns with government and that some were taken aboard. But other serious concerns were not addressed and remain.
The NCC, currently an entity within the National Intelligence Agency (NIA), has the capacity to monitor most forms of electronic voice and data traffic. The commission notes that likely clients include the secret services, NIA and the SA Secret Service, as well as the police and the Financial Intelligence Centre. "Given the sensitivity of both intelligence gathering and infringing the right to privacy, the Bill should specify who is entitled to apply to the NCC for assistance..."
The commission, established to bolster civil oversight of the intelligence community and clamp down on abuses, adds that greater clarity is also needed on whether the NCC is subject to the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) - and to what extent. It also wants to clarify the grounds on which the NCC may snoop and what information is required when making an application to do so.
"The NCC's relationship to RICA is unclear," the commission says in its submission, adding that two of the grounds on which the Bill permits interception are too broad. The grounds are the "protection and advancement of international relations and the economic wellbeing of the Republic", and "support for preventing and detecting regional and global hazards and disasters that threaten life, property and the environment".
The commission says these two grounds are so broad that they would allow for eavesdropping by the state "not only in relation to major security threats and criminal offences, but also in relation to private activities and conversations that are lawful. They would permit, for example, the secret interception of the communication of bankers, economists and traders if this were deemed to advance the economic wellbeing of the country."