Send the ‘Groot Boetie’ FPB amendment & copyright bill back to legislators

ONE month ago, the controversial FPB amendment bill was passed by South Africa’s Parliament. It came as a major blow to online content providers battling prior restraint and other apartheid-era laws from a previous period of newsroom censorship, and will ostensibly turn ISPs into cops, tasked with enforcing FPB content classification, and in some instances, even blocking sites.

If it isn’t nipples and journalists that interest the authorities, then it is Hollywood’s copyright regime and our own country’s fair use/fair dealing laws which seemingly protect creators of content.

A related piece of legislation, the copyright law amendment bill, as it stands contradicts public rights protections and seeks to impose institutional copyright on behalf of collecting agencies, even in areas where a permissive licensing system may already be in place. There is a well-funded lobby promoting copyright restrictions and classification, that also wants to remove fair use wording and any public domain permissions. Currently there are not enough checks and balances shoring up legal defenses against prior restraint while promoting freedom of speech, innovation and the reuse of content via permissive licensing.

The anti-piracy lobby group SAFACT has announced plans to block online sites.  Opening the door to politicians who may also want to block sites and target publishers with which they disagree. The vocal religious lobby routinely rails against what they perceive to be the “anything goes society” as do those from the ‘moral majority’ who view porn as the “work of the devil”.

Conservative and Far Left campaigns against porn, hate speech and other ‘social evils’, have invariably resulted in the loss of fundamental freedoms. Acting as a cover for those who seek to limit criticism and public opinion.

The threat of holding ISPS and publishers responsible for users comments was enough to shut down many discus comments sites when the FPB amendment was first announced, effectively destroying the evolution of online letters to the editor and further eroding what freedom remains on the Internet. The emergence of overly broad anti-hate speech legislation hasn’t helped matters either.

The controversy surrounding the X18 age restriction of local film The Wound, the first time a local film has received such a rating in recent memory, is another example of how the FPB will play itself out.

We’ve written about the many problems presented by the FPB and its draconian plans, chief of which is censorship of online content and the erosion of communications and press freedoms guaranteed by our Bill of Rights. Thus the information freedom subsumed under article 16 freedom of expression, and the right to not have the privacy of our communications infringed, under article 14 privacy rights. All drafted following a period in which apartheid censors had gone overboard in their quest to purify political discourse.

You can read some of these articles here:

Stop SA Government Internet Tax & Censorship Plan

Apartheid censor board mooted, targeting online content

South African Cybercrime Bill creates Trial by Hollywood

There is still time to stop the FPB amendment, (and canvass parliament on the Copyright Bill.)

“First, the president can refuse to sign it and send it back to the National Assembly on the point that he thinks it is unconstitutional, or constitutionally problematic. If that doesn’t happen, any MP can ask the Constitutional Court to review it on the point that the amendment is unconstitutional. Finally if it is passed into law, a private citizen or other body could potentially take up legal suit to get the now Act declared unconstitutional.”

Stop the draconian Cybercrime Bill

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)

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 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;’


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.

Worknet, Sangonet & the struggle for digital freedom

FROM two floppy disks smuggled into South Africa in the late 1980s, to an NGO which continues to play a major role in responding to the Information Technology (IT) requirements of the NGO sector in South Africa, this is the unique story of SANGONeT.

In the late 1980s, not long after Bill Gates had moved from his garage into a boardroom, a quiet IT revolution was taking place in Africa. Organisations and individuals, working on the front lines of human rights and development efforts, were beginning to make use of computers, modems and telephone lines to exchange information.

Arriving back in South Africa from Sussex, Alan Finlay says with “two floppy disks, 64kb of memory and an external modem” was, “a leap in the dark”. “No-one knew how it would turn out. It was the future responding to the surrounding environment. 1

WorkNet brought together what Taffy Adler describes as a “motley crew of union, civic and church activists” and some “progressive computer boffins What this motley crew shared was an interest in harnessing the potential of the new communications technologies for change.

Hooking up anti-apartheid organisations and NGOs to basic email services and newsgroups gave these organisations an edge against the authorities who had yet to embrace information technology.

Simone Shall, WorkNet’s first manager, describes his experience getting unions connected.“We were training the unions on PCs, and wrote a small package for them to manage their memberships,” Shall recalls.

WorkNet attracted the attention of techie activists working elsewhere in Africa, and overseas, as a global network emerged, linking non-profit organisations around issues such as environment, women’s rights, and development. GreenNet, a non-profit Internet Service Provider (ISP) become an important ally for WorkNet. With support from a sister NGO called Poptel (Popular Telematics), an international gateway was set up to WorkNet that would connect it to NGOs across the globe.

The initial set-up at WorkNet was rudimentary; nothing one would associate with today’s modern service providers. The WorkNet international link was automated for example, using a simple DOS-based ‘store-and-forward’ email system called Fidonet. The server would dial-up to the GreenNet/Poptel server in the United Kingdom twice a day to download any text mails which were forwarded back and forth from node to node, in a system which predated the World Wide Web.

‘WorkNet originally used some home-brewed scripts to act as a standalone bulletin board system (BBS). Then it migrated to a commercial BBS product called MajorBBS, an early open source programme, Subsequently WorkNet then upgraded to a Sun Sparc station running SunOS, before moving to outsource its network to a commercial provider in the US.’

Although the Worknet service was eventually forced to close as a result of the introduction of commercial competition from services providers such as MWEB and iAfrica, both of whom were able to provider better connectivity, at cheaper rates, SANGOnet continues to support NGOs and is in the forefront of introducing Information Communication Technology (ICT) initiatives in response to civil society requirements and national development priorities.

Lessons which may be learnt from SANGOnet and in particular Worknet, is the way technology may provide activists with an edge, often in periods of conflict, however this edge is only available for a short time, since new technology constantly replaces the old thus levelling the playing field. Often the experience is one of cat and mouse, with each new technological development implemented by activists being countered by big business and capitalism, think of the way pirates use peer-to-peer (P2P) software to download illegal files, in turn service providers invent new technology to counter these threats.

1Adapted from Alan Finley, The SangoNet Story, 20 years of linking civil society through ICTs 2007 ISBN 978-0-620-39102-3

First published online as a chapter in The Media Activist Handbook

Taxing the Internet, Gordhan’s regressive proposals

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.

South Africa’s digital isolation finally at an end?

South Africa only got television in 1976 thanks to apartheid and the National Party. This pattern of late-adoption of technology was repeated again under a socialist government when the ANC imposed similar tactics of isolation. Instead of unbundling Telkom, the national cable company created by the apartheid state, the party simply took up a position in the market and engaged in the kind of monopoly behaviour that East Germans experienced under Erich Honecker — in effect promoting an artificial, communications Berlin Wall which prevented South Africans from enjoying many of the technological advances of the turn of the century.

Almost 15 years after the rest of the world got broadband, however, South Africans in 2012 finally went online in a big way only to find the world had moved on. Granted, it was always possible to get a dialup account, but Telkom’s metred pricing and uncompetitive practices stifled the kind of ubiquitous Internet that is apparent in the West. Luckily the country’s experiment with mobile telecommunications tells a slightly different story. With the national cable company stuck in the past, a new world of telecommunications unleashed a parallel universe of cheap and accessible services.

Now as the world of cable and mobile converge, we have to ask, what did we miss?

While government censorship committees were deliberating on implementing a Net Kill switch and debating the possibility of a national firewall (65% of South Africans lack Internet services) you probably learnt to ration your Net usage down to a few basic services like social networking and email. But the Internet isn’t just about facebook and twitter. Here are some points to consider.

1. The Learning Revolution.
Online Audio and Video lessons on practically any subject under the Sun, with Free educational lectures on anything from midwifery to rocket science, open university seminars, online tutorials, a plethora of instructables, the world of education never had it so good. Today you can learn how to bake a cake, share food recipes, learn a new language, start a career as a computer programmer with free coding courses, literally anything which can be taught can be related via the new digital medium as a new pedagogy of multimedia transforms education from an elitist pastime to a mass-based and popular occupation entailing lifelong learning.

2. The Open Source Revolution
Remember the days when you had to pirate that copy of Windows XP? Pirate no longer, since operating systems and the software ecosystems surrounding them became free as in free beer. The open source software revolution caused by the networked world of open distribution of digital resources has resulted in plethora of free operating systems along with free applications to match. From Android to Ubuntu, the choice is no longer simply Windows or OSX.

3. The Cloud
The conceptual leap from local storage to online storage is not all that difficult. It all comes down to issues of bandwidth. With broadband being spurred on by the many international cables now landing on our shores, several different cables all capable of quadrupling bandwidth on their own, the technological need to ration bandwidth has effectively ended. While harddrive manufacturers are unveiling their latest terabyte flash drives, Cloud Storage has become all the rage. Users no longer need to download information to a harddrive but instead store this information online to be accessed whenever it is needed. One example of popular uses of cloud storage is streaming audio and video which avoids the hassle of downloads and local storage.

4. Crowdsourcing and Collaborative Culture.
This one is a real paradigm shift. Okay, so you got online, and you figured out how to social network, but do you know you can land a job anywhere in the world while remaining in the comfort of your home? Because the Net allows us to communicate instantaneously with any part of the globe, the possibilities for online collaboration and distance work are endless. The labour market is thus free to go wherever it is needed. One benefit is crowdsourcing for example, Mechanical Turk and Ushahidi who focus on small jobs and creating digital maps respectively. Other examples are the relocation of call-centres dues to VOIP. Practically any service imaginable can be offered in this way.

5. Post Scarcity and the Internet of Things
The rapid advances in technology caused by the Internet have fundamentally altered our economic systems. From just-in-time print-on-demand publishing in which items like printed books and posters are made, but only as orders come in, to 3D printing in which objects one would normally buy at a store are printed on your desktop instead of being made in factories, the revolution that will put China on your desktop and fundamentally alter the way things are made and distributed continues apace.

6. The End of Money
The Internet has not only changed the way we think about money, it has altered our perception of value and created a world in which the only real commodity is our attention span. Whether it is the world of micropayments, Paypal or Flattr, or just the freedom of being able to sell stuff online via Gumtree or eBay, the entire global economy has been transformed and in a relatively short period of time. Increasingly Internet users are conceiving of money as software, the result is crypocurrencies like bitcoin, alternative economic systems like time-banking, Circle of Gifts, and the Talent Exchange, and veritable host of virtual currencies.

7. The Maker Revolution
Amateur robotics and home electronics is proceeding apace as the Arduino platform inspires a host of “makers” to create DIY projects such as the popular Raspberry Pi computer. Anything that can be automated will be and this is bound to impact on human labour as the more menial tasks in society become the domain of robotics. If you can Do it Yourself, life has never been better with an Internet that caters to the DIY home enthusiast, whether it is making home solar power, building log cabins or growing your own food, someone on the Net has a solution.


Why is Telkom opposed to broadband cable freedom?

South Africa’s cable monopoly scam exposed.

The curse of King Tantalus and the Internet

Are we marching to Internetoria?

End Telkom Carrier Preselect on Cable

South Africa’s “Go Digital” Television Revolution

The Department of Communications has announced new standards for digital television set-top boxes which will provide millions of South African households with Internet access for the first time.

The new STB decoder standard, known as SANS862:2012 announced in conjunction with the SA Bureau of Standards, provides for a “return path” functionality which will enable broadband access for households. There are not details as yet on the quality of the broadband service in terms of bandwidth, latency and contention, but expect more about this as HDTV becomes a reality for South African households.

The new revised STB decoder standard includes a USB port and will deliver similar functionality to that of cable and wifi.

Medialternatives raised the issue of Internet via Digital Terrestrial Television (DTT) back in 2008. You can read the posting here.

The new standards are bound to impact on South Africa’s domestic electronics industry, as major players jockey for position in the award of tenders.

The Democratic Alliance has  criticised the new digital strategy of government subsidised decoders for being “Dead on Arrival”, since according to the party, the “decoder can be more cheaply manufactured overseas.”

DA MP Marian Shinn said in March that the demand for the set-top boxes had a limited lifespan and that local manufacturers would therefore not create long-term employment.

The opposition party has obviously not done its homework, since the new standard is a real boost for local electronics manufacturing, providing a baseline for subsidised consumers who are bound to demand further value-added technologies.

The South African Communications Forum (SACF) applauded the move, congratulating Minister Dina Pule, and this blog can only concur — at last common sense has prevailed with a triple reward — digital television is going to benefit local industry, Internet service providers will see a boost from value-added services in particular web-hosting, as the  consumer benefits from an increase in Internet access  options .

Why is Telkom opposed to Broadband Cable Freedom?

I recently moved house and needless to say, relocating my broadband connection turned into a major hassle. For starters, it took Telkom some 22 days to install the connection. Then I realised, my communication bill was seriously biting into my limited income. Surely I could cut down on some of my telephony services, for instance, the voice services bundled along with the broadband data?

Telkom, South Africa’s sole supplier of broadband cable to the domestic household are adamant that if you want broadband, you also have to pay for voice. The saga of  doubling up of costs and the resulting demand for “naked adsl” is testimony to the way the company does business, treating consumers as if they are nothing more than cash cows to be milked for all they are worth.

Some years ago, I started a Facebook group called ZA-FREE. One of the key demands of ZA-FREE was (and still is)  along with the Internet as a Human Right, is for greater broadband options, especially the right not to be forced to pay for bundled voice services on a simple cable connection. There is no technical or physical reason why this can’t happen, and yet Telkom employees act as if the voice bundle is an integral part of the technology which supplies consumers with a broadband cable circuit. Surely a problem related to superstition stemming from the manner in which telephones as opposed to ‘cables’ are installed into homes?

A consumer group called Free the Web soon followed ZA-FREE with similar demands, hence the term “naked adsl”  and the demand for”naked internet”. To date, Telkom refuse to accede to any of our demands for greater rights, freedoms and choices when it comes to broadband.

This got me thinking. Why is Telkom  still opposed to Broadband Cable Freedom, and why has consumer pressure failed to bring the Telco round to a modern, 21st century view of cable, as opposed to telephone and wireless, services?

Could it be Telkom (and the government) fear the potential that broadband cable has for liberating consumers from the narrow-band straightjacket which is capped Internet? Is it a throwback to the apartheid baaskap mentality in which certain sectors of the population are considered of no value except as labourers? In this way of thinking, the only people who deserve broadband are those who can afford to pay for voice services, in other words, the middle class.

Are we marching to Internetoria?

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.

Instead of marching to Pretoria, (when we get upset about something we see on the Interweb) what the Net needs is something like a Magna Carta. Both John Perry Barlow and myself have come up with documents that propound an essentially libertarian approach to the problem. Freedom can only be guaranteed if liberty is the default position in our discussion, and if access to the Internet is considered a human right. There are a number of other Internet rights documents out there, such as APC Internet Rights Charter and I suggest you read them.

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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