Despite being in existence for years, many have only recently become familiar with encryption. This follows heightened publicity around its use on popular social media platforms purportedly offering end-to-end encryption.

Encryption (or cryptography) has been described as a mathematical formula or algorithm that encodes and decodes information, with only authorised persons having access to such information through a key. Encoding the information converts the information into text, making it illegible.

international context

The recent introduction of end-to-end encryption by Facebook Inc. and its subsidiary WhatsApp Inc. on their social media platforms means, in theory, that all electronic communication that takes place on these platforms remains strictly between the parties to the communication. It has widely been suggested (with or without merit) that not even Facebook Inc. and WhatsApp Inc. have the ability to access such communication.

In the wake of suspected exploitation of encrypted platforms to plot (effectively undetected) recent terror attacks in Europe and the United States (“US”), this technology sits at the heart of a tug-of-war between technology giants and law enforcement authorities. Technology giants have argued that they are proponents of citizens’ interests and their right to privacy, while law enforcement authorities have advocated their mandate to ensure the safety and security of citizens.

Recently, there has been heightened activity in the global legal fraternity on the subject, such as the litigation between law enforcement authorities in Brazil and WhatsApp Inc., which saw a court ordering a nationwide shut down of WhatsApp. This was the result of the company’s failure to comply with an order to give law enforcement authorities access to data. WhatsApp Inc. had argued that it was not possible for it to do so as, with the introduction of end-to-end encryption, it did not have access to the requested data. In this regard, WhatsApp Inc. argued that it did not have access to WhatsApp conversations exchanged between its users as such messages were not stored on its server as a result of end-to-end encryption. WhatsApp Inc. has repeatedly made public statements that it cannot share information that it does not have access to.

is encryption permissible in South Africa?

There is nothing in South African law that prohibits the use of encryption, but cryptography is strictly regulated by the Electronic Communications and Transactions Act, 2002 (“ECTA”) read with the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (“RICA”), and the use of cryptography over telecommunication networks is regulated by the Minister of Communications.

Chapter V of ECTA deals with cryptography providers, products and services. “Cryptography service” has been defined as any service provided to a sender or a recipient of a data message or to anyone storing a data message that is designed to facilitate the use of cryptographic techniques for the purpose of ensuring:

  • that such data or data message can be accessed or put into an intelligible form only by certain persons
  • that the authenticity or integrity of such data or data message is capable of being ascertained
  • the integrity of the data or data message
  • that the source of the data or data message can be correctly ascertained

A “cryptography provider” is defined as a person who provides or proposes to provide cryptography services or products in South Africa. Given the wide definition of cryptographic service, notwithstanding that WhatsApp is strictly speaking an over-the-top messaging platform, because it has an encryption functionality, WhatsApp Inc. is regarded as a cryptography provider while its instant messaging platform WhatsApp includes a cryptography service.

In terms of ECTA, cryptography providers must register with the Minister of Communications before providing cryptography services in South Africa, and the communications director general is required to maintain a register of cryptography providers. Cryptography services are deemed to be provided in South Africa if, among other things, the cryptography service is provided to a person who is present in South Africa when that person makes use of the service.

Details of cryptography providers, as set out in the register, would be made available to law enforcement officials in the following circumstances:

  • in the investigation of a criminal offence or for purposes of any criminal proceedings
  • pursuant to an official request from government agencies responsible for safety and security in South Africa
  • to a cyber inspector (appointed in accordance with section 80 of ECTA)
  • pursuant to section 11 or 30 of the Promotion of Access to Information Act, 2000
  • for the purpose of any civil proceedings that relate to the provision of cryptography services or products and to which a cryptography provider is a party

Anyone who contravenes the provisions of ECTA is guilty of an offence and liable for a fine or up to two years’ imprisonment.

In addition, the cryptography regulations set out further requirements that need to be met when applying for registration as a cryptography provider.

access to encrypted data by enforcement authorities

As mentioned above, the Minister of Communications is required to maintain a register of cryptography providers to enable law enforcement officials to request a decryption key from such providers. The empowering law to obtain the decryption key is RICA. Thus, as stated earlier, ECTA and RICA must be read together.

RICA provides for application for various types of directions to be issued, such as real-time communication directions, archived-communication directions, interception directions and decryption directions.

Decryption directions are applied for either at the same time as an interception direction or subsequently, provided the application is submitted during the validity period of the interception direction already issued.

Section 21 of RICA requires an application for a decryption direction to contain the following:

  • the identity of the applicant
  • the identity of the customer in respect of whom the decryption of encrypted information is required
  • the identity of the decryption key holder to whom the decryption direction must be addressed
  • the decryption key must be specified and, if known, must be disclosed
  • the decryption assistance that must be provided

A “decryption key” has been defined in RICA as any key, mathematical formula, code, password, algorithm or any other data that is used to allow access to encrypted information or to facilitate the transformation of encrypted information into an intelligible form. A “decryption key holder” is defined as anyone who is in possession of a decryption key for purposes of subsequent decryption of encrypted information relating to indirect communications.

In light of its introduction of end-to-end encryption, would WhatsApp Inc. fall within the definition of a decryption key holder, as the level of encryption is such that it is not in possession or control of any keys issued?

application to WhatsApp

One of the first high-profile South African cases in which access to WhatsApp messages by authorities could be traced is the murder trial of Paralympian, Oscar Pistorius. The prosecuting authority issued a subpoena to WhatsApp Inc. in the US for the retrieval of data contained in messages exchanged with the murder victim, Reeva Steenkamp.

This subpoena came before the introduction of end-to-end encryption security functionality by WhatsApp in April 2016. As such, WhatsApp had no legally defensible reason for failing to comply with the subpoena as it was in control/possession of the decryption key. If the request had been made after the introduction of end-to-end encryption, WhatsApp would likely have refused on the basis that it could not comply as it cannot give information that is not in its possession.

The right to privacy has been entrenched in the Constitution. This includes the right to be free from intrusions and interference by the State and others in one's personal life, as well as unauthorised disclosure of information about one's private life. But the right to privacy is not absolute and can be limited when reasonable and justifiable in accordance with the Constitution’s limitations provisions. Could it be argued that WhatsApp Inc. and other cryptography providers who provide end-to-end encryption and claiming not to have access to a decryption key are creating a dangerous platform for criminals to engage in illegal activities without government surveillance? Could WhatsApp have implemented other security functionalities to further strengthen privacy without completely bringing law enforcement authorities to their knees through their introduction of end-to-end encryption, thus placing an ideal communication tool in the hands of criminals to go undetected?

A test case before the courts on the constitutionality or otherwise of end-to-end encryption, and access to encrypted communication in general, would be a welcome development. For now, it remains to be seen whether the courts will ultimately align their approach with the recent resolution by the United Nations Human Rights Council (A/HRC/32/L.20), which seeks to strengthen anonymity and encryption.