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Illegal state surveillance in Africa ‘carried out with impunity’

Analysis of surveillance laws and practices in six African countries finds that existing privacy laws are failing to protect citizens from illegal digital surveillance, which is being facilitated and enabled by global tech companies

Governments in Africa are conducting illegal digital surveillance of their citizens with impunity, despite privacy rights being well protected on paper, according to a comparative analysis of surveillance laws and practices in six African countries.

The analysis, conducted by the Institute of Development Studies (IDS) and the African Digital Rights Network (ADRN), pulls together six separate research reports looking at how the governments of Egypt, Kenya, Nigeria, Senegal, South Africa and Sudan are using and investing in new digital technologies to carry out illegal surveillance on citizens.

These technologies include artificial intelligence (AI)-based internet and mobile surveillance, mobile spyware, biometric digital ID systems, CCTV with facial recognition, and vehicle licence plate recognition.

While the overall analysis noted that citizens’ right to privacy and private communication is enshrined in each country’s constitution – as well as international human rights conventions and their own domestic laws – it claimed that each government is purposely using laws that lack clarity, or ignoring laws altogether, in order to carry out illegal digital surveillance on journalists, activists, opposition leaders, judges, and others.

The report said the erosion of citizens’ privacy rights is down to a range of factors, including: the introduction of new laws that expand state surveillance powers; an increased supply of new surveillance technologies that enable the practices; and impunity for any state agent caught conducting illegal surveillance.

“No prosecutions were recorded in any country for those state employees conducting illegitimate surveillance of citizens,” said the report. “Civil society activists are alarmed about evidence of surveillance creep, the normalisation of illicit surveillance and what they fear is a slow descent into digital authoritarianism.”

It added that although state surveillance is nothing new, it has expanded massively in the digital age.

“Colonial powers used surveillance to enable extraction of taxes and to monitor the struggle for independence,” said the report. “In recent years, analogue surveillance has been digitised and automated, making mass surveillance possible. This has happened against a backdrop of 15 consecutive years of reductions in democratic freedoms worldwide and shrinking civic space globally.”

Speaking to Computer Weekly, the report’s editor and digital research fellow at IDS, Tony Roberts, said there are clear links between the surveillance carried out under formal colonialism and the surveillance being carried out now. “Under colonial rule, UK Special Branch spied on its political opponents,” he said. “When those opponents of colonial rule came to power after independence, some of them retained special branches and developed their own surveillance systems.  

“Over time, new technologies of surveillance have been incorporated. They are supplied by the UK, France and other countries in the global north. The UK continued to use signal intercept [techniques] to conduct surveillance on former colonies post-independence. The continuities are clear.”

Strong civil society needed to challenge abuses

The report also cited the insufficient capacity of civil society to hold the state fully accountable to its own laws as another major factor contributing to the erosion of privacy rights.

“The violation of human rights occurs in many countries, but the threat is arguably greatest in fragile democracies – those with weak legal and regulatory oversight, poor institutional protections and where levels of awareness about privacy rights and surveillance practices are lowest,” it said, adding that although surveillance laws can be improved by providing mechanisms for notification, transparency, oversight and legal punishments, these changes will be insufficient without a strong civil society to challenge abuses.

“Unless the state adheres to the law, it has limited relevance,” said the report. “Our country reports suggest that holding governments accountable in law depends on a strong and active civil society. Raising public awareness about privacy rights and surveillance practices is a necessary precondition to mobilising the political will that is necessary for reform of the law and the ending of impunity.”

Roberts said any legislative changes implemented in the six countries – such as a single, dedicated surveillance law that supersedes previous legislation – would give civil society a “point of leverage”, and that the inclusion of privacy rights in their constitutions could already provide a means for pushback against abusive surveillance practices.

“There are good examples of using strategic litigation in South Africa and Kenya to push back against state surveillance and gain some concessions and reforms,” he said. “The hope is that even in Sudan or Egypt, where the good conditions [for civil society] don’t really exist, the fact that it says in the constitution that this right [to privacy] is inviolable is a potential point of resistance.

“It is important to build capacity on the ground in each country to document, mitigate and overcome illegal surveillance that violates human rights. This requires working with journalists to raise public awareness, working with lawyers to enable strategic litigation, and working with researchers to monitor, document and analyse.”

But Roberts noted that even in countries such as the US and UK, where civil society has a greater ability to challenge human rights violations, governments and corporations still often act with impunity, as shown by the aftermath of the Snowden revelations, when courts ruled that the US National Security Agency’s behaviour was illegal. “There were no consequences for any people, and as far as I’m aware,” he added.

Tech firms facilitate and enable illegal mass surveillance

Roberts said surveillance has transformed dramatically in just a few decades as a result of technological advancement – from an “expensive and time-consuming business” where entire teams of people with different skills were needed to manually surveil just one person, to a much more automated process where AI and algorithms can be deployed to scan electronic communications en masse.

He said there are broadly three categories of surveillance technology being used by the six African governments: social media surveillance, signal intercept surveillance and mobile phone spyware.

Social media is used, for example, to profile citizens and commodify this data for use in covert election manipulation by political public relations firms, while signal interception of internet or mobile data is facilitated predominantly by US and Chinese companies selling AI-based systems that enable remote, automated keyword search of private communications, he said.

According to Roberts, these companies include the likes of IBM, Palantir and Cisco in the US, and Huawei, Hikvision and Dahua in China.

Read more about digital surveillance

“These three types of surveillance have been brought to public attention by the Cambridge Analytical affair, the Snowden revelations and the Pegasus spyware scandal,” he said. “In all three sectors, the surveillance technologies and services are being sold by for-profit companies in the global north to states in the global south – fuelling a descent into digital authoritarianism.”

In the case of Pegasus spyware, Roberts said the company behind it, NSO Group, “is only one of a dozen Israeli companies – and Israel is only one of a dozen countries from the global north – supplying surveillance technologies to African states”.

He added: “The Pegasus story, worrying as it is, is only the tip of the iceberg. There is a fast-growing multimillion-dollar global market in supplying surveillance technologies to states that use them to violate the rights of their citizens.”

However, Roberts said “nobody has a comprehensive understanding” of which entities are involved in providing surveillance equipment, adding that researchers are still in the early stages of understanding exactly which companies in the global north are supplying which technologies to which governments.

“In Nigeria alone, their budget for surveillance technologies was in excess of $100m a year,” he said. “Nigeria is a big country, but there are 53 other countries just in Africa, so it’s a huge market that’s growing very quickly and is proliferating, not just in terms of volume, but in terms of sophistication and lots of different new technologies being rolled out.”

Cutting off the supply

In April 2019, during its investigation into the UK’s role in Saudi Arabia’s war on Yemen – which has seen significant breaches of international humanitarian law as a result of what Amnesty International has called “indiscriminate and disproportionate air strikes” – Channel 4’s Dispatches was told by a former BAE Systems employee that without support from the arms company and the UK government, “in seven to 14 days, there wouldn’t be a jet in the sky”.

In response to Computer Weekly’s questions about whether the six African governments could sustain their current surveillance practices without the support of foreign companies and governments, Roberts said the shortest route to ending their “descent into digital authoritarianism” is to cut off the supply of digital surveillance technologies.

“Currently, they don’t come from within Africa, they come from Europe, North America and China,” he said, adding that because of their military and law enforcement applications, many of the surveillance technologies being deployed would come through the arms trade supply chain.  

While the report itself noted that further research is needed to map which companies are supplying which surveillance technologies to which states, Roberts said people from the countries where these companies are based should begin campaigns to end the supply.

In August 2021 – following Forbidden Stories and Amnesty International’s exposure of how the NSO Group’s Pegasus spyware was being used to conduct widespread surveillance of hundreds of mobile devices – a number of UN special rapporteurs called on all states to impose a global moratorium on the sale and transfer of “life-threatening” surveillance technologies.

They warned that it was “highly dangerous and irresponsible” to allow the surveillance technology sector to become a “human rights-free zone”, adding: “Such practices violate the rights to freedom of expression, privacy and liberty, possibly endanger the lives of hundreds of individuals, imperil media freedom, and undermine democracy, peace, security and international cooperation.”

In September 2021, the United Nations’ high commissioner on human rights, Michelle Bachelet, called for a moratorium on the sale and use of AI systems that pose a serious risk to human rights as a matter of urgency.

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