Censorship hysteria breaks out in local media

A brief period of madness and self-righteous anger last week surrounded the Interception and Monitoring Bill, tabled in Parliament on 18 July 2001.

The hysterics were sparked by an article on a Web site, www.censorbugbear.com, under the tabloid-style headline "S-Africa plans to block Internet access!".

The Bill, which none of the journalists in question seem to have read, is quite specific about when and how communication may be intercepted.

Ivo Vegter, ITWeb features editor and deputy editor, Brainstorm

The site warns that a "draconian Internet censorship law" is being sneaked through Parliament "with only 21 days allowed for public comment".

The same august Web publication - whose designers cleverly disguised the site to look like a student pamphlet - yelps, "New racist laws in SA telecomms Act", and "United Nations warned of Afrikaner Genocide".

Now I`ll admit that I went for a few drinks on Friday night and might have missed an important public broadcast, but being a keen follower of the legislative process, especially as it applies to information and communications technology, I probably would have noticed if a new Telecommunications Act had been passed.

(For the record, SA hasn`t had a new Telecommunications Act since 1996, and will in all likelihood only see some amendments to the current Act later this year.)

Several local radio stations, IT publications and Web sites picked up on the "Censorship Bill", and responded with sensational reports of their own. Sa.internet.com chimed in with "under the auspices of the nefarious Bill lie the censoring of any postal communications, telecommunications, and online channels (such as e-mail and Web sites)".

The Censor Bugbear article refers to an article on WorldNetDaily, which warns that "a new draconian censorship law to control and monitor all postal and Internet communications is being pushed through the South African Parliament by the ruling Marxist African National Congress party".

The dire news continues: "According to Harry Wu, the world`s leading human-rights dissident, China has a new friend in SA, and Mbeki is a communist to be reckoned with."

Of course, journalists have a duty to protect the rights of civil society against abuses, or inept legislation that may lead to abuses. And protecting the populace from evil communists that want to establish a police state and overturn the constitution is probably something the media should oppose - in the interests of its readers, of course.

But journalists also have a duty to check their facts, and not unduly scare their readers or listeners.

And the fact is that the censorbugbear.com article, which seems to be the only source for this sensationalist outcry, can at best be described as a misinterpretation of the Bill.

Perhaps the journalists in question need to be taught not to blindly believe everything they read on the Internet.

The "truly draconian censorship law quietly being introduced by the South African regime" is, in fact, part of a process started three years ago. According to Mike Silber, a lawyer specialising in telecommunications law, SA currently has a law, "The Interception and Monitoring Prohibition Act" of 1992, which provides for "wiretapping" of telephonic conversations and interception of postal articles under certain conditions and on the authority of a judge.

This Act, says Silber, is "an enlightened piece of legislation that prohibits interception and monitoring of communications without the order of a judge". It does not take account of new forms of electronic communication, however, and was in need of review.

The SA Law Commission investigated the Act and proposed various changes in November 1998. These changes were published for public comment, a further report on the law was released in October 1999, and a further public comment period was allowed.

The Bill, which none of the journalists in question seem to have read, is quite specific about when and how communication may be intercepted. It is even more specific about when communication may not be intercepted. And it is completely silent about censorship.

An application may be made by a suitably high-ranking police, military or intelligence officer, to a judge. The judge must be satisfied that there are reasonable grounds to believe that a serious offence has been, or is being, or will probably be committed, and cannot be investigated in another appropriate manner; or the security or other compelling national interests of the Republic are threatened.

The judiciary is, constitutionally, independent, so the law will not, by any stretch of the imagination "give the ANC the ability to censor, block and intercept all postal and Internet communications," as claimed in the WorldNetDaily article.

And three years of debate is more reasonable than the sneaky 21-day comment window the "Marxists" are claimed to be giving South Africans.

The Bill is not without its faults, of course. It seeks to prohibit means of communication that cannot be monitored. However, interpreting this as censorship is a mistake.

Censorship seeks to prevent communication itself, not limit the means or medium of communication.

The clause does raise questions of the sort policy makers in the European Union and the US are grappling with. If a judge should give the required order, how can encrypted information be made monitorable? Should Carnivore-style equipment be installed at ISPs and other telecommunications operators to allow the police to intercept and monitor Internet (and other) communications, and who should carry the cost of this? If a system of "key escrow" is introduced, can the government be trusted to keep these keys safe from hackers?

Yet many of these problems could be avoided thanks to a single sentence in section seven of the Bill. No service that cannot be monitored may be supplied, "provided that a service provider providing such a service is only responsible for decrypting any communication encrypted by a customer if the facility for encryption was provided by the service provider concerned".

In other words, the use of encryption by individuals is not affected.

Furthermore, the mere ability of authorities to monitor communications may open the door for abuses such as interception without a suitable court order, or by unauthorised people. Inadmissible though such information may be as evidence, it could be used in all sorts of ways - justifiable and otherwise.

There are also those who argue that since the rights to privacy of communication and freedom of speech are enshrined in the constitution, this Bill would violate the constitution. However, the constitution itself makes provision for limiting the rights it affords under certain conditions.

At issue here is the classical conflict between the ability to enforce laws and the potential for rights abuses. SA would not be joining the likes of Cuba and China with this law - as the Censor Bugbears would have us believe.

It would be joining the most developed countries with the strongest history of parliamentary democracy and public accountability - most of which provide for interception and monitoring of communication, if a judge so authorises.

And whether that`s desirable is an entirely different debate from the hysterical ranting about draconian censorship laws seen in the media over the last few days.