Over the past half year, Privacy International has been investigating the sale of surveillance technology made by South African company VASTech to Libya and what role the government had in promoting and developing the system. Unfortunately, the government has been slow to respond to our questions and has offered only vague answers. This has done little to ease our concerns about the part they played in the development and export of mass surveillance technology to a military regime with a history of internal repression and human rights abuses.
The responses that the government has given though, mainly in response to questions from the media, have been interesting. First, after being confronted with the fact that the South African Government helped fund VASTech to develop surveillance technology, a spokesman admitted that the body approving the funds knew it would be used for mass surveillance. Secondly, it now appears that government money is still going to the surveillance company for a previously unknown software program, called “Next”. In light of this new information, two months after we initially reached out to the government for answers, we sent a follow up letter asking further questions of the South African Department of Trade about the continued relationship between the government and VASTech.
A few days after we sent our second letter on 15 January, a response arrived from the Department of Trade, dated 18 December, referring to our first letter of November. Their reply was evasive, stating that they “manage a large suite of incentives and assists thousands of business enterprises each year”. What piqued our interested, however, was the Minister’s statement that had they known of advertisements of Zebra being capable of mass surveillance, the outcome of funding would “certainly” have been different.
There is a worrying trend developing that the South African authorities are dragging their feet in answering legitimate questions regarding their export policy. Separately, in both June and July 2013 we wrote to the South African National Conventional Arms Control (NCAC) Committee, the body that oversees South Africa’s arms control regime ensuring it remains “legitimate, effective and transparent”. Having received no answer, we filed a complaint with the NCAC Inspectorate (“the Inspectorate”) in October detailing our concerns that a breach of the National Convention Arms Control Act, 2000 may have occurred. The Inspectorate replied promptly, but did not clarify if their control regime had been breached and said the “necessary investigation” would be launched.
The Inspectorate indicated that they would attempt to verify why we had received no response to our previous correspondence addressed to the NCAC Committee. Following undue delay, we received verification that the matter is being investigated. It is our understanding that this investigation should be completed by the end of February, however we are also aware that further formal procedures may require navigation before full and open answers are received.
No knowledge of ‘nefarious’ mass surveillance
While the South African government was delayed in responding to our initial investigations into government funding of VASTech and their Zebra surveillance system, the Department of Trade’s spokesman Sidwell Medupe did speak with the Mail & Guardian in November when confronted with our evidence and questions.
Medupe confirmed that the SPII Adjudication panel, which decides what monies are allocated and to whom, included Department of Trade employees, approved the funding for Zebra and “knew that it would be for mass surveillance”. However, the Department is adamant that when the approval took place, it did not know that it would be “used for nefarious purposes” and that they were “led to believe” Zebra was only meant for “monitoring of borders and stadiums, among other things”.
This is a difficult position to understand. It is internationally recognised that mass surveillance technology has the ability to violate the rights to privacy, expression, political affiliation and other fundamental rights. Frank La Rue, the United Nations Special Rapporteur on Freedom of Expression and Opinion, reported in June 2013 that this technology “eradicates any considerations of proportionality, enabling indiscriminate surveillance”. Crucially, the report concludes “States must take measures to prevent the commercialisation of surveillance technologies, paying particular attention to [their] research, development, trade, export and use”.
Worryingly, the story does not end with Zebra. The Mail & Guardian confirmed that, the South African Government continues to fund VASTech, this time supporting an altogether new software programme called “Next”. It is unclear what this programme is designed for, or for how much the Government is contributing, but it appears the links between the Government and this private sector run deep.
Despite the obvious risks that such mass surveillance systems pose, the South African Government seems to have ignored their duty to conduct due diligence in investigating what technologies developed in their country and exported with their support would be used for. The position of the South African Government appears to be that if any product (including for mass surveillance) meets their “relevant criteria”, that is all they as an approving body require. This startlingly low level of due diligence for these technologies was reiterated by the Minister in his response to us (of 18 December); “Enterprises eligible for SPII support must be registered in South Africa and they must be engaged in activities which promote technology development beginning at the end of basic research and end where a pre-production prototype has been produced.”
What the South African Government knew
The government’s response to our first letter confirms a worrying lack of human rights due diligence in the companies public money is being invested in. The Minister’s response reveals:
- VASTech provided all the information “that was required at the time of the application” relating to Zebra’s capabilities. This is reminiscent of the political wordplay of “Is there anything I need to know?” versus “Is there anything I should know?”
- Technical due diligence was conducted, but the “commercial merit was not tested (including the mass surveillance capabilities)”
- There was “no indication on the part of VASTech that the finished product [would] be used for activities against humanity”
- The Department does not get involved in the commercial activities of companies that receive funding.
- The Department of Science and Technology also have representation on the awarding panels, which would indicate that a level of technical competence was very much present when analysing the technologies.
- The Department of Trade were not aware of any advertisements of Zebra being capable of mass surveillance, and quite crucially in our opinion: “Certainly this would have provided a different outcome from the adjudication panel”
- The current project, approved in 2010 is not yet complete and one milestone has been paid, however there is no indication that this project will cease or public monies will be withheld based on this revelation.
In our second letter to Minister Davies, we noted the due diligence process was absent of any “assessment of the product’s effect on human rights; or an impact assessment of the product relating to political and regional stability”. For technologies that can play a role in critically and systematically undermining the fundamental human rights of vast swathes of society, it is unacceptable that no consideration or assessment is made of their impact on that society. The bar is set too low for technologies that are designed to capture 30-40 million minutes of mobile and landline conversations a month and archive them for years, as well as to intercept the content of over 100,000 calls simultaneously. These cannot be categorised in the same manner as traditional “innovative projects”.
Based on the government’s response to the Mail & Guardian, our follow up letter to Minister Davies asked for clarification:
- Is it Departmental policy to fund mass surveillance technologies, as long as it adheres to the due diligence procedure of the product being innovative, the applicant has a viable business, and it is produced in South Africa?
- Would the Department, if presented with suggested criteria, consider broadening and adopting wider due diligence policies, allowing for the impact and affect on regional stability and human rights, to be taken into account in the award of funding?
- Does the Department take into consideration past business practice of the applicant when deciding the suitability of awarding a grant?
- Can the Department give assurances that a due diligence process, which includes a human rights impact assessment, was undertaken prior to the approval of the grant to VASTech for their “Next” programme?
Again, we have found that the South African Government appears to be using public money to fund the development of projects by a well-established and wealthy private enterprise. Based on VASTech’s past business history of selling systems to dictatorships, and the reluctance of the South African Government to institute any meaningful due diligence process, this must be publically scrutinised in a transparent and comprehensive manner.