Towards a South African Internet Bill of Rights


Back in 1996 the WWW was in its infancy and South Africa’s constitutional assembly was putting the final touches to a document which would become our Bill of Rights. I wrote a letter to Wired Magazine about the inclusion of a home-grown right which had heretofore been excluded from the lexicon of government and especially the previous apartheid regime.

The Right to Privacy (article 14), and more specifically the right of citizens not to have the privacy of their communications infringed, was written during a period in which cryptofreaks and cyberanarchists were under threat from various quarters. The US government had only a year previously attempted to clamp down on PGP encryption technology, while South African anti-apartheid activists had been caught by the Bureau for State Security (BOSS) using IBM technology. The very real possibility of an Orwellian world in which privacy was practically impossible because of the new technologies then emerging, scared us enough to want to secure privacy as well as communications freedom.

In addition to privacy, our progressive constitution lists under Freedom of Expression (article 16), the “freedom to receive or impart information or ideas” and the terms used specifically exclude the kind of bureaucratic doublespeak which often seems to place the binary world of noughts and ones beyond the scope of liberty and freedom. Our constitution is very much a pro-Internet and information-friendly document.

It is therefore extremely disconcerting to see attempts by the Deputy Minister of Home Affairs, Malusi Gigaba to limit Internet freedom under the guise of an anti-pornography campaign. Not only has Gigaba expressed his desire to build a “national firewall” like the one surrounding mainland China, that would essentially filter out content the government deems to be a threat to national security, but he appears to believe that service providers will willingly allow themselves to be implicated in the erosion of civil liberties guaranteed by our constitution.

If one follows the Ministers obsequious reasoning, not only will first tier providers pay for the new firewall, but consumers will have the Department of Home Affairs to thank for providing content. If the proposed legislation is adopted, every single website will end up under the purview of the Publications Control Board and the concept of Net Neutrality will be abolished in the national interest.

How is it possible that we have come to the Orwellian future in which the right to receive and impart ideas, the privacy of our communications is infringed to the point where Google searches, Yahoo mail, Facebook and Flikr are all subject to the dictates of the Minister of Home Affairs?

Shortly after 911, under pressure from the Bush administration our government passed a series of bills aimed at clamping down on global terrorism. The Anti-Terrorism Bill  (ATB) became known as the The Protection of Constitutional Democracy against Terrorist and Related Activities Act (Democracy Act). Fortunately South Africa did not end up with a Patriot Act, but it proceeded to adopt off-the-shelf US legislation which had once been shot down by the democrats under Clinton, only to be adopted under George W Bush. Despite criticism the new bills passed without substantial debate and opposition from political parties  in Parliament.

FICA and RICA are bizarre acronyms that you will find in postings about the infamous Clipper Chip and anti-PGP technology on mailing lists doing the rounds BEFORE South Africa’s Bill of Rights was even adopted. Not only do we get fingerprinted by Home Affairs (a rights violation if ever there was one) but we now get FICA’d and RICA’d — retinal scans and chip implants are surely not far behind?

While we all know that FICA gives our government the right to delve into our bank accounts, do you realise that RICA (Regulation of Interception of Communications Act) forces mobile telephone companies to install technology that allows our government to record wireless conversation and capture SMS traffic without judicial oversight? That’s right, Clipper Chip technology has already been implemented in our telephone system thanks to people like Malusi Gigaba.

Now the Department of Home Affairs is in the process of drawing up a RICA FOR THE INTERNET. The deputy minister has essentially expressed the desire to censor content while placing back-doors and clipper chips in every computer using broadband technology. In essence the government wants a backdoor into your social life and desktop – the right to spy and censor your communications without having to bother with the rigmarole of court orders and judicial oversight.

The reason they are unlikely to ever succeed in completely eradicating Internet freedom is because of public key encryption technology. PGP and GPG are the de facto standards of encryption technologies today. You see this type of technology in action every time you get a VeriSign SSL or TLS web page. Programmers use it to authenticate software and people use it to sign documents. Personal Encryption i.e privacy is something we all take for granted but seldom use, lulled into the complacency of ubiquitous and freely available content. It may soon become the only way to experience freedom in cyberspace.

Unless we secure our rights with new laws that give affect to our Constitution — creating a Bill of Rights for the Internet which also recognises the rights of the individual qua machines,  and which includes Net Neutrality and other core ideas such as the right to share content via fair use and copyleft, we will be forced to encrypt everything. Our web pages will be slowly served up as encoded noughts and ones as Malusi Gigaba merely succeeds in retarding development and disabling the kind of fast, open social intercourse that yes, delivers pornography as much as it delivers new ideas like Ubuntu to the rest of the world.

NOTE: The Protection of Information Bill is currently under consideration in the South African Parliament, the ISS and Open Society Justice Initiative are hosting a public seminar to exchange ideas about the protection of information within a democratic dispensation

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