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)
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.
A 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.
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;’
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.
IT’S BEEN a long time coming, the new tax proposals mooted by government could end up doing more damage to Internet access than any censorship laws. In his latest budget speech, Pravin Gordhan outlined a plan whereby ” foreign businesses which sell e-books, music and other digital goods and services should be required to register as VAT vendors, in line with regulations which have been adopted by the European Union and other jurisdictions.”
Exactly why this is bound to back-fire is obvious, since many small online website stores hosted in the cloud will not be able to cater to local tax regimes. The policy will only make sense to large global concerns like Apple iTunes who are likely to monopolise the system. Mid-sized online retailers will simply refuse to ship orders to South Africa or block services that conflict with local tax laws.
The job of collecting an Internet tax, if it is ever implemented will be extremely difficult to police. It also sets a precedent whereby sites like Youtube could find themselves susceptible to industry-lead blanket copyright taxes which are bound to come on the heels of any new SARS tax initiative.
The regressive system of taxation being punted by SARS, is also the bailiwick of the music industry who see it as a way of enforcing compliance with antiquated copyright laws. There are also proposals by on-demand digital television companies for the entire Net to be licensed. Sweden recently adopted a law forcing computer users to license their computers, and South Africa could soon follow suit. The online freeconomy which has existed for nearly two decades, and which has resulted in mashup sites like ccMixter and Soundcloud are bound to face pressure from a government which sees the digital world as ripe for the picking.
Industry pundit Arthur Goldstuck supports these proposals and has decried the use of torrents and video streaming, blaming “a few hundred bandwidth hogs” for destroying intellectual property. Clearly the old guard just don’t get free torrents and the creative commons, myopically perceiving the digital world as a threat instead of an opportunity, in other words, they fail to acknowledge the Net as anything more than another marketplace, instead of seeing it as a way to create a new form of capitalism in which all users are effectively shareholders in a global network that redistributes wealth while creating digital assets.
Customs and Excise already collect substantial tax for the exchequer from imported goods shipped via the Internet, and this duty and burden need not be shifted to online retailers. Fortunately South Africa’s Bill of Rights guarantees communication freedom and the right to privacy, it will therefore be interesting to see whether any of the Ministers proposals are able to pass constitutional muster.
Discussing Network Neutrality as if it were a Network Switch that government can turn on or off, implies having a rational debate between opposing parties. Technologically speaking, the Internet has always routed around the problem of censorship. Advances in technology however, do not appear to stop lawmakers from making bad decisions. Recent failed attempts by government to create a national firewall, to effectively RICA the Internet, are warning signs that Network Neutrality in South Africa (as well as Africa) is under serious threat. One has only to examine the statements on BBM made by the deputy minister of communications Obed Bapela at the Southern Africa Telecommunication Networks and Applications Conference (SATNAC) to be extremely alarmed at the prospect of state intervention in our online communications.
Back in 1996 the World Wide Web was still 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 to not have the privacy of their communications infringed, was written during a period in which cryptopunks 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 matter is still the subject of litigation in the Khulumani case.) The very real possibility of an Orwellian world in which privacy was a practical impossibility because of the new technologies then emerging, scared us enough to want to secure privacy as well as communications freedom.
People fought and died for these rights — In addition to the right 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, and I therefore welcome the speedy clarification by Minister Jeff Radebe, the Coordinator of the Justice Cluster in Government, that “Government has no intention to regulate or legislate against Blackberry Encryption messenger services (BBM)”. Pretoria/Tshwane is apparently still ‘working on a policy statement on Cybermatters,” and last month hosted the inaugural South African Internet Governance Forum (ZAIGF), where groups such as ZA-FREE, were needless to say, not invited.
The invariable result is that we now appear to have two schools of thought in government on how to go about fostering “an inclusive Information Society, creating a multi-stakeholder information sharing platform, formulating the common South African position with regard to the global Internet Governance” and accommodating the various academic, scientific and technical and need one add hacker communities.
The one approach, professed by people like Radebe is that South Africa simply implement the code already packaged in the constitution, for example, by adopting the Geneva Action Plan and the Tunis Agenda for the Information Society which has also been endorsed by the AU. This is the popular view. The other less-popular outlook advocated by securacrats such as Bapela and Deputy Minister of Home Affairs Malusi Gigaba, both of whom don’t appear to know what the Internet is all about, is essentially a totalitarian and interventionist approach, a Marxist dream in which all communication is controlled by a central authority in a fascist political dispensation in which individual rights do not exist as we know them, and if they do, they are extremely limited.
The self-serving attempts by Gigaba to limit Internet freedom under the guise of an anti-pornography campaign
for example, arise periodically and there is no guarantee that the progressive rights in our constitution will be upheld or that bad laws will not emerge.
The Gigaba Plan may have quietly died, but we should note with concern that Home Affairs publicly expressed the desire to build a “national firewall” like the one surrounding mainland China, that would essentially filter out content which government deems to be a threat to national security. Gigaba and his ilk, appears to believe that Internet service providers will willingly allow themselves to be implicated in the erosion of civil liberties guaranteed by our constitution, in the same way that mobile telephone companies have allowed themselves to become platforms for the clipper chip which is now in every mobile phone.
According to Home Affairs, not only would first tier Internet providers pay for the new firewall, but consumers would have the Department to thank for providing content. If the proposed legislation is ever 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.
Unless we secure our rights with laws that give affect to our Constitution — implementing 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 become slower, our work will be more difficult, and Big Brother will merely succeed in retarding development by disabling the kind of fast, open social intercourse that yes, delivers pornography as much as it delivers new ideas like Open Source Software and Ubuntu Linux to the rest of the world.
Clearly, as the Egyptian Revolution has shown, when the Internet is shut down, when Service Providers are banned, hackers fall back on modem dialup, BBS, POP servers and other pre-Web 2.0 devices to get their fix of data. We can only welcome the new self-regulated and distributed world which is being created and hope that what emerges is not simply colonisation of a different variety but rather a new Congress of the People, in which all are able to have their say and input in the new digital frontier which evolves.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License
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
DESPITE claims to promote online freedom, to represent the “public interest” on the internet “when our freedoms in the networked world come under attack,” the Electronic Frontier Foundation started by mavericks Mitch Kapor and John Perry Barlow is impotent when it comes to jurisdictions outside of the territory in which it is based.
A recent complaint about having an online post unilaterally deleted off this very blog, by a host based in South Africa got the following response from Gwen Hinze, EFF International Policy Director: “We are simply not able to provide legal advice outside of the country in which our lawyers are licensed.”