Why we cannot give the government a whiff of power over the internet

A recent Bloomberg report in Business Day exposed the harrowing shutdown of the internet in Uganda earlier in 2021, and elsewhere in Africa previously, arguing that the promise of internet freedom is being stolen from Africans.

These shutdowns  are usually an effort by governments to silence political dissent. Yet much of the power governments have over cyberspace is freely given by the people. Perhaps we the people should reconsider our generosity.

Internet freedom must be protected and entrenched against government interference, and we need to be cognisant of how we might be undermining our own advocacy in this regard. There are broadly two ways in which this happens.

First, we invite various forms of government interference in internet affairs, which necessarily results in a government decision to switch off the internet or otherwise interfere with political rights. In SA we have the Cybercrimes and Cybersecurity Bill, intellectual property laws, proposed hate speech legislation, and so forth, which substantially increase the government’s authority online. If something is posted online, the government invariably reserves the power to make internet service providers, hosting providers and others  — broadly, internet service providers (ISPs) — remove it.

We can agree that certain things must be illegal. Stealing other people's work and passing it off as your own, or threatening to deprive others of their constitutional rights, are illegal in common law and should probably remain so. But it does not follow from this that the government must have the power to have things removed from the internet.

Rather leave it to the courts to determine whether intellectual property rights have been infringed, and if so order that the online content be removed. The same applies to other online delicts and offences. The government — meaning executive departments and agencies, ministers and officials — must not have the general power to remove content.

ISPs provide a service to their clients. The government is not a party to this relationship or its associated transactions. It is a great injustice when ISPs take instructions from the government and not from their clients.

The Bloomberg report notes that ISPs are concerned that they will lose operating licences should they defy government orders to silence dissent or to simply switch off their networks. This speaks to a broader problem of uncritical deference to "the law".

The Holocaust and its aftermath was meant to teach human civilisation that "I was simply following orders" or "it's the law" are not valid excuses for doing what is plainly wrong. Yet ISPs, and businesses in other contexts, do whatever is asked of them by governments as if this lesson was never internalised.

It is certainly worth reconsidering whether "operating licences" should be abolished in favour of general economic liberty, but whatever the case, "it's the law" is not a convincing argument.

Second, we invite government interference in internet affairs when we demand data or internet access be provided free of charge — freebies instead of freedom.

"He who pays, says" is a principle that has been recognised throughout the centuries, almost without exception. If the government pays for data or internet access, we must expect that such a handout will come with significant strings attached, even if only implicitly or indirectly.

We should want as many South Africans to have access to the internet as possible. There are very practical and non-harmful ways to achieve such an ideal. But it appears many people prefer the most direct, and thus most harmful, method: price control.

Rather, we should ask why many South Africans cannot afford to pay for data or for a high-quality connection in the first place. The poverty most South Africans find themselves in is a result of years of government mismanagement of the economy, prohibiting people from taking jobs on terms agreeable to them, punishing saving and entrepreneurship, and extracting ever more wealth from the dwindling productive sectors of the economy. Let’s first undo this travesty before bestowing more regulatory power on the government.

Governments inevitably find it irresistible to abuse powers they have been granted by democratic mandate. It is within the nature of the state to extend and enlarge any power it has. We have seen this with expropriation, which historically has been married to compensation, yet now that is in doubt. We have also seen it with traffic law. Historically, and according to common law, the government must prosecute recklessness that leads to criminal harm. Today, however, the government is proposing a zero threshold for blood alcohol, meaning if you took cold medicine before driving, you might end the day in jail if you are unable to "negotiate" with the traffic officer.

When it comes to civil liberties and economic freedoms, we cannot afford to give even an inch. Once given, that initially reasonable scope of regulation will be progressively enlarged to encompass ridiculous scenarios. It is difficult to reverse an entrenched regulatory regime. Society should therefore guard against granting this authority in the first place.

In the present context it is clear there must be a separation of the government and cyberspace. We have already seen what can happen when the government is granted general power over the internet. We have already made the mistake. But given the relative youth of the internet, there is still time for us to undo this error — it is not yet entrenched.

As the internet becomes an ever-greater part of everyone's daily lives, it is crucial that we secure internet freedom for centuries to come. That means less government involvement in general, and no "free data" in particular.

This article was first published on BusinessDay on  31 March 2021.

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