How Internet rights were included in our constitution

IT WAS in 1995 that I returned from self-imposed exile and America’s West Coast. Having launched what would be the very first online act of mass civil disobedience against John Major’s Criminal Justice Bill the previous year. The Distributed Denial of Service (DDoS) attacks against Whitehall were launched from a techno party at the 181 Club in San Francisco, followed by a landmark Digital Be-In ‘CyberSafari’ videoconferencing event, linking the continent of North America with Africa — that I embarked on a series of public happenings in South Africa, culminating in several inaugural cyber-rights events at the iCafe in Long St, Cape Town.

david-netdemo-event2A photograph from the period shows me at a terminal, wearing a Mondo 2000 t-shirt, at the very first NetDemocracy event in the country hosted by Nodi Murphy and Stephen Garrett.  A simple information activist, participating in an online Internet Relay Chat (IRC) chat with Minister Pallo Jordan alongside 120 citizens from around the country, all of whom happened to be online.

“Internet Cafe expert gets in touch with Posts and Telecommunications Ministers Dr Pallo Jordan via the Internet relay chat held in the city yesterday. More than 120 people from around the country asked him questions about the Green Paper on telecommunications policies.” opined the Cape Times.

Jordan would later the same day, accept a complimentary copy of the Virtual Community,  Homesteading on the Electronic Frontier by Howard Rheingold, as I proceeded to also fax Minister Jay Naidoo, with demands that we resist the urge to simply usher in the Internet Age, but also take proactive steps to protect user’s rights online, rights such as the right to privacy, right to not have one’s communication intercepted, right to receive and impart communication electronically, right to cryptography and pretty good privacy (PGP), the right to download and upload information, the right to copy data and so on.

Successive events the following year in 1996 held during the constitution-building process, charted new territory and included a CuSeeMe video-call with columnist and digital rights advocate Douglas Rushkoff from New York, a public IRC session with the editor of Future Sex Magazine, Lisa Palac , and a controversial session on Martinican poet Aimé Césaire, Léopold Sédar Senghor and Léon Damas entitled ‘Negritude on the Net’, and other such interventions.

The somewhat crude outcome wasn’t exactly what we all intended, in the end, there was unfortunately, no single article in our constitution entitled ‘Internet Rights’, but instead, as fate would have it, the authors of the Constitution and our Bill of Rights achieved the same. By engaging in public consultation, by utilising the very same tools we, as net activists, were advocating, the constituent assembly effected an astonished feat and made good on many promises. Eventually including a suite of astonishing information and communication rights, many of them applicable and ready-to-wear or subsumed under other legal headings.

wired-mag-1996
Wired Magazine information byte on the BoR

The historically important result was noted by Wired Magazine, who reported on the landmark inclusion of information and other rights. A first for any country on the planet.  Thus, article 14 ‘Right to Privacy’, has the crucial right to not have the privacy of our communications infringed.

Article 16 Freedom of Expression aside from granting individuals the freedom to blog, tweet and produce electronic media, contains the all important ‘freedom to receive or impart information or ideas;’

and,

Article 32 Access to Information, guarantees ‘access to information held by the state, or required for the exercise or protection of any rights.’

These three foundational rights or ‘spheres of responsibility’, when read together form an important guarantee of online freedoms and cyber-liberties, and must be seen against the backdrop of the constitution’s formation, as a secular document enshrining civil liberties for the digital age. One can thus be proud of the 21st century wording, which is both progressive and future proof.

For our nation’s founder Nelson Mandela, it was a major milestone in constitution building and alongside the rise of the Internet as the World Wide Web, which had came in the aftermath of our very first democratic election, we had collectively opened the doors of technological progress.

South African’s can be grateful we all have a digital-ready constitution and that the country has one of the most strident and open information provisions anywhere on the globe. Municipal, provincial and national government all actively share information online with voters and taxpayers.

Our taxes are now accessed via an online portal operated by the South African Revenue Service (SARS), as are other government services. A public campaign to provide free and open access to internet and data has been gaining steam, and many metros are now providing wifi for gratis.

Despite the enormous progress and despite such guarantees, as I write this, there are still several current legislative threats before the House of Assembly, pitted against our hard-won freedoms, and include the Film & Publications Amendment Bill, the Copyright Amendment Bill and Cybercrime Bill, all introduced by the ruling party, and all containing wording, stratagems and concepts which run counter to the spirit of the constitution and the nation’s legacy of cyber rights.

It thus remains up to the generation of today, the millennials and especially the new crop of digital activists and open access cadres, to defend online freedom and African cyberspace, to make good on the many promises contained in South Africa’s Constitution.

2 comments
  1. IN OCTOBER of 2015, I warned readers of the many dangers inherent to the deeply flawed and draconian Cybercrime Bill, Medialternatives was one of the first publications in the country to break the story, followed by an opinion piece written by myself and published by the Cape Times, I therefore feel obligated to respond to the latest round of publicity on the subject.
    The bill continues to threaten the ‘fundamental democratic spirit of the Internet and increases the state’s surveillance powers.’ The allegations have been denied (but not refuted) by deputy minister of justice and constitutional development, John Jeffery, at a media briefing on the Bill in Pretoria last week.
    Although the latest version of the bill that will be introduced to Parliament is ‘considerably different in many respects to the Bill that was issued for public comment,’ it still contains provisions which are highly problematic from a civil rights perspective, in particular the erosion of the communications rights in our Constitution which favour individual data gathering and information sharing.
    Advocacy group Right2Know Campaign (R2K), which is opposed to the Cyber Security Bill and has called for it to be scrapped, says (via ITWeb), that despite the revisions, the fundamental fatal flaws of the Bill are still there.
    R2K advocacy coordinator Murray Hunter says the organisation recognises the Department of Justice has made some important revisions in the Bill: “But as far as we can see, the fundamental, fatal flaw of the Bill is still there − it would hand over the keys of the Internet to state security minister David Mahlobo.”
    Particularly worrying is the bill criminalises the modification of computer programmes by users, in effect open intellectual inquiry is outlawed by a presumption that any curiosity for instance, is evidence of an ulterior motive. Why would users want to gain access to their operating systems, if only to engage in crime?
    The bill is thus an amalgamation of paranoid and securocratic concerns about potential, online criminal activities, From hacking to interception of data, from forgery and uttering, to extortion and even terrorist activity. And most certainly there are very real reasons to be afraid these days of unwanted intrusions such as identity theft, fraud and surveillance, but should modifying computer data be grounds for the presumption of criminality?
    Similarly, the use of common network tools, such as ping, finger, netstat and so on, would under the current version of the bill, also incur the legislators wrath. Why would anyone wish to analyse network traffic if only to commit crime? The mind boggles at the scope and sheer over-reach of the contemplated new statute.
    Removing bloatware, adware and other unwanted intrusions by software companies, will not surprisingly, also run the risk of offending the new proposed law. There are many articles available online, on the issue of whether computer software users do have or ought to have the right to modify legally-obtained software, either themselves or through the services of another party.
    “Private software consumers should have those same modification rights under intellectual property law that are recognized when the government is a consumer of software” says Pamela Samuelson of Berkeley Law Review. The Free Software Foundation has long campaigned for user rights to modify and alter computer programmes. The entire open source movement is predicated on the rights contained in the GNU/Linux General Public License (GPL), which expressly allows such modifications.
    One of the novelties inside the bill is the new delict of “theft of an incorporeal”. One can only presume this is meant to convey the idea of virtual objects, which may be copied without permission and thus also “stolen”. In legal tradition the crime of theft usually deprives the owner of property, not simply by leaving behind the original and making a digital copy, which has lead many internet rights activists to point out the inherent contradiction.*
    The overly-broad definition of “computer” by the bill, leaves much to be desired, and opens up users to unwanted litigation merely for possession of a personal computer, and thus an unnecessary attack against general purpose, personal computing. In today’s interconnected and networked world, it is often difficult to determine where an intrusion or ‘cyberattack’ originates, and what exactly is being conveyed by the noughts and ones of machine code.
    Turning victims into criminals isn’t the solution.
    You can read more about this debate on Itweb, with an excellent contribution by Simnikiwe Mzekandaba
    See my separate article on how internet rights were included in South Africa’s Constitution.
    (*NOTE: In 1991 South Press carried a pioneering article by myself, pointing out the problem of defining property in the computer age, the M&G refused to run a follow-up citing concerns to do with property-ownership. I later participated in the campaign to include Internet rights in the Constitution)
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  2. […] See our separate article on how internet rights were included in South Africa’s Constitution. […]

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