Tuesday, May 21, 2024

Is the ruling party using State resources to spy on political opponents?

A claim not made for the first time by opposition politicians in Botswana is that government is spying on them through an elaborate phone hacking scheme operated by the Directorate of Intelligence and Security Services (DISS). 

If true, such claims which have been repeated by the opposition against successive governments over the years would point to a systematic abuse of the intelligence agency by ruling politicians to serve their own rather than the national interests. 

Such concerns highlight the pressing need for an establishment of the long overdue oversight committee to monitor and review the activities of the Directorate of Intelligence and Security (DIS) and other security agencies. 

Last month there were a series of arrests involving opposition politicians and journalists in the country.  Opposition politician, James Mathokgwane is one of the few politicians that found himself detained by the DIS for questioning about “a DIS document” that he said they believed he had in his phone. 

Mathokgwane said the spy agents told him they are looking for “their document” about a project involving the former President Ian Khama.

He said the DIS took his phone for about a week before they could return it. Before he could start using it Mathokgwane said he took it to some people who realized that it was tapped and was advised to get a new one because his phone is not safe to use. 

According to Google, phone tapping is the action or practice of connecting a device to a phone so that the conversation can be listened to secretly.

“We had to clear it but it was difficult because the IT expert told me that now that they have the IMEI number they can always find their way to my phone.”

According to Google you must think of IMEI (International Mobile Equipment Identity) as your phone’s fingerprint. IMEI is a 15-digit number unique to each device. Phone carriers and manufacturers share IMEI numbers to enable tracking of smartphones that may be stolen or compromised.

“All the elements within my phone that were supposed to be disabled, voice, data, messages were enabled.”

Mathokgwane said the IT expert told him that since all these features were enabled it meant that they have now managed to get inside his phone ,so whatever conversations he will be having the spy agents can hear him and they can access his messages.

Mathokgwane thinks he is being unlawfully surveilled even across his social media accounts. He said for as long as they have his IMEI number they can have access to all information in his phone.

He revealed that the document that was being referred to was about the DIS strategy to counter Khama’s international utterances about President Masisi’s government, which he said he believes is the same document that got local privately owned newspaper Mmegi Senior journalist, Innocent Selatlhwa and Editor, Ryder Gabathuse  into trouble. 

The duo were detained by DIS last month at the height of deadline day on a Thursday in front of shocked staff, with no explanation given, the two were released in the wee hours on Friday morning without any charge, according to a statement released by Mmegi.

An IT expert who preferred to stay anonymous said security agents don’t have to take your phone physically to tap or track it and neither do they have to go to service providers for such. 

He explained that there is legal tapping and illegal tapping. “If there is a crime, security agents can ask for intrusion from service providers. Lawful intrusion is allowed and systems are designed in a way that they can be hacked for  lawful purposes.”

He explained that there are different types of tapping. He said Air interface level and cloning otherwise called Bridging can be used to tap phones.

The IT expert said one’s location and profiling of phone records can be used to crack down cases because security agents can use phone location signals to track who was within a radius of a crime scene. He added that a lot of cases have been solved with the use of various hacking methods, otherwise cases would take long to crack.

His advice is one must always assume that they are being listened to and warned that you cannot deal with sources over the phone. 

He said besides physical interaction, internet cafes are one of the safest places to send sensitive information using pseudo accounts.

The IT expert said one of the ways to tell that your phone might be tapped is an echo in the background or a call that fails at the first attempt and goes through at the next attempt.

There is a popular belief that it is difficult to penetrate WhatsApp because of its end-to-end encryption security feature, which is why most people prefer to use it when they are discussing sensitive matters. The IT expert said this is far from being true, noting that the end-to-end encryption is only at the public (ordinary) level. Further explaining that there are different levels of tapping. He said at the security level it’s allowed and possible. He did however acknowledge that there is a possibility that all of this can be abused by authorities. 

Contrary to what the IT expert said, reports indicate that it is quite difficult for anyone to intrude on end-to-end encryption. A case in point is  the proposed Internet Safety legislation in the UK that is seeking WhatsApp and other messaging services to break end-to-end encryption.

According to various news reports, WhatsApp and other messaging services have united to oppose Britain’s plan to force tech companies to break end-to-end encryption in private messages.

Meta-owned WhatsApp, Signal and five other apps signed an open letter saying the law could give an “unelected official the power to weaken the privacy of billions of people around the world,” according to news sources.

Opposition party, Botswana Patriotic Front (BPF) Spokesperson, Lawrence Ookeditse was among those detained in relation to a “DIS document.” 

Ookeditse said it is common course that they are under surveillance and that the DIS is tapping their phones. 

He alleged that the DIS are getting into our groups, “it’s something that they said to me and apart from that we are also aware, you don’t have to be intelligent to know that they have equipment that can probably record our conversations, it’s standard global practice,” noted Ookeditse. 

He said they are of interest to the state because the President of Botswana, Mokgweetsi Masisi doesn’t like the idea of the opposition coalition party Umbrella for Democratic Change (UDC) and the BPF coming together and effecting regime change, adding that the DIS is a tool of the state but also highly politicized.

Ookeditse said how else would the DIS have known the document is in their phones, if they are not surveilling their  phones and platforms.

He labelled all of this as surveillance but said that in the case of Botswana it’s a little unique because it’s not for purposes of national security but for purposes of regime security. 

Ookeditse noted that the DIS returned his phones but wasn’t excited about it, “once they take your phones they become useless because who knows what they will do, they would probably plant their bugs in your phone.”

“They are not returning your phones, they are basically giving you tape recorders and microphones that they can then use to eavesdrop into your every conversation and business so they are as good as not giving them back,” he noted.

Asked if he has physically seen the bug in his phone or if this is just an assumption, Ookeditse said it’s not him thinking that but it’s him knowing how intelligence operates because he is a professional in the field. “I studied security so I know what happens, it’s not even a case of me suspecting that they may do this but it’s a case of me knowing what intelligence does because I know what intelligence culture is.”

“So you are dealing with a rogue element, your own phone also probably has a microphone (referring to my phone).”

Reached for comment, DIS Public Relations Officer, Edward Robert said his office is not aware of phone tapping fears or allegations. 

“However, since you have raised the apprehensions, I can assure your readers that the Directorate is guided by the law in all its operations.”

Robert said it has to be noted that confiscation of electronic devices including mobile phones can be part of the investigation process that law enforcement agencies undertake from time to time and they are empowered by the law in doing so. 

He said the devices would be taken to verify certain allegations and the gadgets are taken as exhibits for collection of evidence. “In the case of the DIS, the guidance comes from Section 22, subsection 4 of the Intelligence and Security Service Act. This is done when the Directorate has reasonable grounds that an offence against the DIS Act could have been committed.”

“The second thing to note is that the exhibits are sealed in front of the suspect and signed off by both the lead investigator and the suspect. This is meant to ensure the integrity of the exhibit. The forensic analysis of the gadgets, if that is the exhibit, is done by an independent analyst who is the only one empowered by the law to break the seal.”

“They will then generate a report that speaks to the findings as well as the integrity of the exhibits as brought to them. This is a foolproof process meant to protect both the suspect and the investigating authority.”

Ookeditse said when they take the phones they put them in an envelope and they seal them. He is of the view that this means nothing because they bring the seals, “it’s not your seal, it’s their seal, so it’s not going to stop them from tampering with the seal before they take them to wherever they take them to.”

“They are taking it and putting it in a brown little envelope and then they put a seal, then what does it mean? It’s just an envelope that they will then tear apart and then do whatever and put back in the envelope and seal again. And they produce the seal. It’s not like it’s your seal, even if they give you a number, what does it mean because they may have printed 20 or 200 of those seals.”

Oversight Committee

This is probably where an oversight committee like the Controlled Investigations Coordination Committee, provided for under the Criminal Procedure and Evidence (Controlled Investigations) Act 2022, could also be used by individuals for seeking redress if it was established. 

In the absence of the oversight committee the DIS and other security agencies have a free hand to go about their activities without any form of scrutiny, under such circumstances abuses cannot be ruled out.

It has been over a year since the Bill was passed into law and the oversight committee has still not been set up yet.  The committee is supposed to be chaired by a judge and populated by people with expertise in human rights, finance, law enforcement, ICT and other related fields. 

Acting Botswana Police Service (BPS) Commissioner, Phemelo Ramakorwane said at the parliamentary Public Accounts Committee (PAC) that the oversight committee has not yet been set up. 

In an interview with this publication, University of Botswana Associate Professor, Tachilisa Balule in the department of law and lecturer said the absence of that committee is a serious loophole. 

“One would also wonder why it has not been established, but will that be surprising, given the attitude of our government.”

He noted that the long and short is that the Controlled Investigations Coordination Committee has the potential to play an important role and people should really lament its absence or the fact that members have not been appointed into that particular committee.

Measuring the effectiveness and impact of such a committee would have, Professor Balule said when you look at that committee, it has to adjudicate on claims. On what an individual may perceive to be an abuse of the use of surveillance.

Balule noted that surveillance by nature happens in secrecy so chances are that the targets of surveillance will never know that they were actually targeted. He added that in the absence of any requirement that those that are subjected to surveillance must be informed after the event, how will people know that they were targets of surveillance and for them to approach the committee to file complaints. 

He said in his view, if there is no obligation to inform people that they were subjected to surveillance after the event, then that committee is not likely to have any meaningful impact as a body intending to guard against the misuse of surveillance.

Appearing before PAC last month, DIS Director General Peter Magosi responded to allegations that his organization may be conducting surveillance on members of the public.

He said he is doing everything to ensure that there is nothing that is done outside the rule of law, emphasizing that every activity that he has ever authorized is within the law.

However, Magosi could not deny that there could be some officers within the organization that may be misusing government resources for their own benefit and surveilling members of the public for their own benefit. 

He said back in 2019 some politicians have accused DIS of surveilling them and noted that if you ask them today they say it was just politics. 

As discussions on surveillance practices continue, Botswana finds itself at crossroads between national security concerns and citizens’ privacy rights. The calls for oversight and transparency by politicians, human rights activists and journalists remain crucial.

Mmapula Molapong is a journalist researching digital surveillance with the support of the Media Policy & Democracy Project (MPDP), run by the University of Johannesburg, Department of Communication and Media.

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