Nelson Mandela and Privacy
Nelson Mandela, the first black president of South Africa and known as the "Father of the South African Nation" recently passed away on December 5, 2013. Mandela was admired and revered for having emerged from prison on Robben Island after twenty-seven years of imprisonment, to lead his nation out of apartheid. Mandela was imprisoned by the regime in 1964 after a trial where he represented himself and was sentenced to life imprisonment. During his time imprisoned, he became the world's most famous political prisoner and was eventually released in 1990. He then took the lead in urging reconciliation and forgiveness, winning the Noble Peace Prize Noble Peace Prize in 1993, along with Frederik Willem de Klerk "for their work for the peaceful termination of the apartheid regime, and for laying the foundations for a new democratic South Africa." He became president of South Africa in 1994 and set an example for future leaders by serving only a single term in office. Until 2008, Nelson Mandela was on the U.S. Terror Watch List. The United States eventually removed him from their terrorism watch list in 2008.
During the Cold War, the South African apartheid regime was an ally of the United States in the fight against Communism. The African National Congress was one of the main opponents of the apartheid regime and this is the party that Nelson Mandela remained a part of, even while imprisoned. In the 1970s, the apartheid regime had designated the ANC as a terrorist organization and the United States, under President Ronald Reagan, soon applied the same designation in the 1980s. Due to Cold War dynamics, President Reagan supported the apartheid regime, saying that it was "essential to the free world in its production of minerals."
Being designated a terrorist organization means that members of that organization have a more difficult time entering the U.S. One article explained that "When ANC members apply for visas to the USA, they are flagged for questioning and need a waiver to be allowed in the country. In 2002, former ANC chairman Tokyo Sexwale was denied a visa. In 2007, Barbara Masekela, South Africa's ambassador to the United States from 2002 to 2006, was denied a visa to visit her ailing cousin and didn't get a waiver until after the cousin had died..." Despite the release of Nelson Mandela from prison in 1990 and his subsequent election in 1994, the ANC remained on the U.S. terror watch list until 2008. Then Secretary of State, Condoleezza Rice noted at the time that ""This is a country with which we now have excellent relations, South Africa, but it's frankly a rather embarrassing matter that I still have to waive in my own counterpart, the foreign minister of South Africa, not to mention the great leader Nelson Mandela." It took the U.S Administration until July 1, 2008 to remove the ANC from the U.S. terror watch list and only after legislation was passed.
The Anti-Pass Campaign
The word "Apartheid"is an Afrikaans words for the "state of being apart" and came to describe a system of racial segregation instituted by the white South African government following the 1948 election. As part of the South African apartheid regime's attempt to segregate the members of the population into different racial categories (white, colored,black and Indian) the government instituted a series of "Pass Laws." These laws deemed urban areas "white" and required black Africans to produce documents on demand, the equivalent of internal passports, in urban areas or face immediate deportation to rural areas of the country or arrest. The passes became a potent symbol of the apartheid regime. There was a great deal of resistance to this coercive regime, often organized by the African National Congress. However, by the late 1950s, tensions were emerging within the movement and a break-away group formed the Pan-African Congress. As part of the struggle, the ANC planned an anti-pass campaign and the PAC decided to undertake its own campaign prior to the ANC's campaign, in order to bolster its members. For more information on the Anti-Pass Campaign, see South African History Online (SAHO): 1960 Anti-Pass Campaign.
The Sharpeville Massacre
Both parties undertook intensive efforts to launch their respective Anti-Pass Campaigns, which called upon black South Africans to travel out without their passes and to present themselves peaceably at police stations in order to be arrested. The basic theory was that if too many individuals were arrested, the jails would be full and the economy would come to a standstill. The protests took place on March 21, 1960 and in Sharpeville, a crowd of 5,000 gathered and eventually ended up facing a crowd of 300 police officers. An altercation occurred and the police opened fire, killing 69 protesters and 180 were severely wounded. When news of the massacre spread across the country, other protests gathered in Cape Town and were suppressed by police force. For more information on the Sharpeville Massacre, see SAHO: Sharpeville Massacre, 21 March 1960.
Later on, Nelson Mandela selected Sharpeville for signing the South African constitution into law in 1996. The South African Constitution, in Chapter 2 (Bill of Rights), Section 14 expressly recognizes the right to privacy, stating
Everyone has the right to privacy, which includes the right not to have
their person or home searched;
their property searched;
their possessions seized; or
the privacy of their communications infringed.
The basis for the Pass System was the passage of the Population Registration Act of 1950, which formally mandated that every South African be registered in accordance with their racial characteristics. The Population Registration Act thus provided the legal authority for the government to make the necessary racial classification. This information would then be included within the passbooks, which non-white South Africans were required to carry under a separate law. The Population Registration Act was eventually repealed in 1991.
A great deal of information could be collected under the authority of the law. According to Section 7:
7. (1) There shall, in respect of every person whose name is included in the register, other than a native, be included in the register the following particulars and no other particulars whatsoever namely—
(a) his full name, sex and ordinary place of residence;
(b) his classification in terms of section five;
(c) the date and place of his birth;
(d) his citizenship or nationality, and in the case of an alien, an indication of the fact that he is an alien;
(e) his marital status;
(f) in the case of a registered voter, the electoral division and polling district in which he is registered as a voter under the Electoral Consolidation Act, 1946 (Act No. 46 of 1946);
(g) the date of his arrival in the Union, if not born in a part of South Africa included in the Union;
(h) a recent photograph of himself, except in the case of a person who has not yet attained the age of sixteen years, or who has been admitted to the Union for a temporary purpose; and
(i) his identity number.
The South African Government and the "Technopolitics of Social Identity"
The South African government assigned Identity Numbers to different racial groups, which further helped the government in tracking the population. The law enabled the South African government to track its population extensively. A recent article by Paul Edwards and Gabrielle Hecht describes this process as "The Technopolitics of Social Identity" and argues that "the ideology and practice of grand apartheid were deeply bound to personal identity documents, which in turn were coupled to an increasingly automated data processing system. The pillars of apartheid were the compulsory documentary order, biometric identifiers (fingerprints), the baroque taxonomy of racial identity, and the elaborate system of architectural zones and geographical and temporal borders."(Journal of South African Studies, Volume 36, Number 3, September 2010 at 625.) The article goes on to describe the deliberate and comprehensive construction of an elaborate tracking register, which the regime believed would "permit total control of the black population." By 1966, the regime had ten million prints within its database and tracked between one to two million prints annually, yet was unable to keep up due to a "critical shortage of manpower." For more information on the history of the registration and tracking process, see History and the Technopolitics of Social Identity.
The South African Government and American Corporations
This process of tracking the South African population was often supported by U.S. technology companies such as IBM. IBM constructed a registry known as "The Book of Life" which was designed to "replace birth and marriage certificates, driving and firearms licences, and other documents with a single identity book, indexed with a unique identification number." (626-627) As multinational corporations grew more involved with helping to maintain the apartheid regime, anti-apartheid activists began to target these corporations directly, in the form of divestment or boycotting the companies. IBM for instance controlled nearly half the South African computer market and starting in 1972, "activist minority shareholders introduced divestment resolutions at every IBM stockholder meeting." These activists argued that without this international support, the regime would not be able to flourish, and therefore, the corporations were indirectly responsible for sustaining apartheid. By October 1986, "IBM announced that it would sell its South African subsidiary to local employees" in large part in response to the work of anti-apartheid activists.
This support by U.S. companies still has potential ramifications even today, as approximately ten years ago, a group of plaintiffs sued over fifty companies under the Alien Tort Statute (ATS), alleging that many of these companies had aided and abetted the South African apartheid regime, thus violating customary international law. During the process of the law-suit, the defendants were winnowed down to just four corporations--Ford, Daimler AG, IBM, and Rheinmetall AG. However, a recent decision by the Supreme Court in Kiobel v. Royal Dutch Petroleum 133 S. Ct. 1659 (2013) narrowed the scope of the Alien Tort Statute, by holding that the presumption against the extra-territorial application of U.S. law applies to the Alien Tort Statute.
Based on this rationale, the Second Circuit Court of Appeals recently (August 2013) held that the claims against the three companies were barred by the decision in Kiobel. While the case was actually remanded to the lower court and so is not completely over, the plaintiffs are unlikely to prevail. However, the current legal wrangling indicates that concerns about the actions of American corporations supporting the South African apartheid regime remain relevant today.
In an order on December 26, 2013, Judge Scheindlin dismissed Daimler AG and Rheinmetall, the last two foreign corporations. However, the order left Ford and IBM in the lawsuit and gave the plaintiffs an opportunity to brief "whether a corporation may be liable for a violation of ATS." This briefing will take place in January and February 2014. For a good summary of the recent development, see this Lawfare blog post.
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Communications Law and Policy
Jerry Kang and Alan Butler