Optics play an essential role in Southern African governments’ approach to digital rights — particularly around protection of personal data and surveillance. Governments in the region want to be seen as being democratic and progressive, by passing data protection and cybercrime laws that may outwardly seem to be in line with regional standards. However, the laws are being crafted with little distinction between their intended purpose and their actual consequence. Cybercrime laws, which are meant to protect against online threats include hacking, identity theft, fraud, phishing, pharming, spoofing, profiling, spyware, tracking cookies, online witch hunting, bullying and stalking, tend to include “backdoor clauses” that allow countries to spy on their citizens without protective judicial oversight mechanisms to determine whether the surveillance is in the interests of national security or is unwarranted. The timing of the passage of these laws and their selective application against journalists and human rights defenders in particular is also indicative of the intent behind the use of the regulations. An analysis of Zimbabwe’s Data Protection Act 2021 by MISA highlights: “that the government is operating under a very misled presumption that cybersecurity equals national security.” The Zambian government passed the contentious Cyber Security and Cyber Crimes Act 2021 just a few months before the scheduled August 2021 elections despite vehement opposition from civil society organisations. Alongside South Africa, Botswana is one of the countries known in recent times to have requested user data from global technology company, Facebook. Journalists and other media practitioners in Botswana have also reported suspected phone tapping and other communication surveillance by the Directorate of Intelligence and Security (DIS). Newsrooms have been turned from being bastions of freedom of expression to closed and tension-filled spaces dominated by fear and suspicion of infiltration. At the end of 2021, Botswana seemed to be frantically pushing to pass what was described as one of the most contentious surveillance laws in the region. The amendment of the Criminal Procedure and Evidence (Controlled Investigations) Act was due to be brought before the country’s legislature in early 2022. The Botswana government argued that the law was being amended to comply with the recommendations of the Financial Action Task Force (FATF). South Africa, in this respect, leads its regional peers through its Regulation of Interception of Communications and Provision of Communications Related Information Act (RICA), which requires a judge’s assessment to allow for surveillance. (15) But even with its robust law, the Constitutional Court found that sections of RICA violated the Constitution, in a case brought by journalist Sam Sole of AmaBhungane, who was being spied on by the state without his knowledge. (16) Save for the Comoros and Namibia, all other SADC countries have strict laws which make SIM card registration mandatory. (17) While SIM card registration is said to aid the fight against crime, which is yet to be proven, this registration actually violates people’s right to communicate online anonymously, particularly because telecommunications providers, depending on their licensing conditions, are compelled to give information about certain subscribers, if ordered by the State. For example in the Democratic Republic of Congo Article 7 of a 2015 Ministerial Order 15 empowers the government to have unlimited access to subscribers information held by telecommunications companies. (18) INTERNET ACCESS Accessing the internet is gradually becoming inexpensive, but it is still out of the reach of many Africans. Internet access is hindered by taxation of internet services, the licensing of online users, such as YouTubers and news sites, and infrastructure such as electricity supply and base stations. It is estimated that nearly 45 percent of Africa’s population are 10 kilometres away from network infrastructure. (19) The vast majority of citizens in Southern Africa access the internet through mobile network operators. Base stations are sparsely distributed in rural areas compared to urban areas, which means that rural areas do not have access to internet services. STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 9 SURVEILLANCE AND PRIVACY OF ONLINE COMMUNICATION