Right now it is overkill to require network providers to infringe our right to privacy

Cellphone service providers have been conscripted into updating the government on everyone’s whereabouts during the Covid-19 lockdown. This encroachment on the right to privacy is severe and does not satisfy the requirement of constitutional justification. In this and other ways, the government has overreacted to the outbreak of coronavirus, and it would do well to remain calm and adhere to constitutional precepts for the remainder of the crisis.

On March 26, the day the Covid-19 lockdown began, the communications and digital technologies department published its supplemental regulations to the main lockdown regulations that confined most South Africans to their homes. Regulation 8 requires certain licensees in the internet and digital sector to "provide location-based services in collaboration with the relevant authorities identified to support designated departments to assist and combat the spread of Covid-19".

This is a convoluted way of saying your cellphone service provider must, when asked, let the government know where you have been or where you are, or provide the government with direct access to your past and current location, using the “location” functionality on your cellphone.

Section 14(d) of the constitution provides that everyone has the right to privacy, and this includes not having "the privacy of their communications infringed". As every keyboard lawyer has pointed out, this right is limitable under section 36(1) of the constitution. But the limitation must be reasonable and justifiable in an open and democratic society based on freedom, dignity, and equality. This is determined by factors such as the nature of the right, the importance, extent and utility of the limitation, and whether any less-invasive or restrictive measures are available to achieve the same objective.

However, contrary to the strong views of certain publicly renowned professors in constitutional law, section 36(1) is not an "aha!" clause that may be invoked to justify every limitation on liberty. Justification is not automatic. The government must do the hard work of making a strong argument, supported by reason and evidence that satisfies the section 36(1) formula.

As one of our constitutional drafters, Gerhard Erasmus, noted, the constitutional limitations clause is not about empowering the government to limit rights. Instead, it simply recognises that the government's conduct inherently limits rights, and limits the way in which government may do so. Section 36(1) is part of the protection, not infringement, of civil liberty.

Cellphone location tracking is justifiably used when criminals are being pursued. Each leg of the section 36(1) analysis is easily satisfied. But when dealing with law-abiding, presently fearful citizens, the story changes dramatically.

The lockdown has already created an environment of isolation and self-enforcement. Many citizens are "snitching" on their neighbours when they leave their homes. Society is regulating itself, for now. This may change in future if more panic sets in.

Under the present circumstances, it is overkill to conscript cellphone service providers — private companies — into government service by requiring them to infringe on our right to privacy. There is no good reason for the government to know where we are or what we are up to. If you are concerned about your privacy, it might be worthwhile switching off your cellphone’s location service, or alternatively switching your cellphone off altogether.

There are no easy answers during this time of public crisis. But as the acclaimed anti-apartheid parliamentarian Edgar Harry Brookes, and advocate (and later judge) John Burman MacAulay, wrote in 1958, citizens must always be vigilant when it comes to exercises of government power, and when in doubt must err on the side of protesting "in every constitutional way open to them". If they do not, it "would be rank disloyalty to SA".

This article was first published on BDLive on 02 April 2020
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