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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