You may have seen something like this when you use the popular messaging app, Whatsapp:
What is this and what does this mean?
Before we start, it might be a good idea to read this notice from Whatsapp.
Locally, the encryption of messages and information are governed by the Electronic Communications and Transaction Act of 2002 (the ECT Act) and the Interception of Communications and Provision of Communication-related Information Act of 2002 (or more commonly known as RICA).
The ECT Act – more specifically, Chapter 5 of the Act – provides regulation in terms of service providers, products and services that offer some sort of way of encrypting data. This same Chapter of the Act also requires that providers of these services and products must register with the Minister of Communications in order to be able to provide these services in South Africa.
Now, as many of us may know, Whatsapp is one of the largest messaging apps in the world, and as such, they aren’t based in South Africa, therefore, Whatsapp Inc. aren’t subject to Chapter 5 of the ECT Act.
Should a law enforcement body wish to obtain decrypted information from a South African entity that is registered with the Minister of Communications, the provisions set forth in Section 21 of RICA would apply as it sets forth the requirements that are needed to submit an application to gain access to the encrypted information.
So, how does this all fit together?
With end-to-end encryption, the party who employs this type of encryption, as in Whatsapp’s case, can rely on a strong defence to avoid disclosing any sort of encrypted info as the user’s data is not stored on their system and that they do not have access to it.
Now, as helpful as it is and regardless of the fact that there are very positive benefits to this type of privacy, it can hamper legal authorities as they might not be able to easily gain access to encrypted data which could be exchanged between criminal elements who use services such as Whatsapp or platforms that are similar.
However, in such cases as these where privacy of one versus many are concerned, the constitutional rights of the individual will be weighed against that of the public to find a delicate balance between protecting an individual’s right to privacy and fighting crime.