Research ICT Africa executive director Dr Alison Gillwald.

Law and ICT experts have highlighted several flaws in SA’s Draft National Policy on Data and Cloud, questioning government’s approach to position citizens’ data as the infrastructure for production, rather than as an input or factor of production.

This was one of the key concerns raised during a recent virtual panel discussion held by ICT research organisation Research ICT Africa (RIA), when experts discussed the potential implications of the draft policy, published by the communications and digital technologies (CDT) minister for public consultation.

The discussion, moderated by RIA executive director Dr Alison Gillwald, comprised Torbjörn Fredriksson, head of the ICT analysis section of the division on technology and logistics at the UN Conference on Trade and Development; Jonathan Klaaren, professor at the Wits Institute for Social and Economic Research; Gabriella Razzano, legal consultant at RIA; Amazouz Souhila, senior radio communication officer at African Union Commission; and Andrea Campbell, commercial attorney at Microsoft SA.

The draft policy proposes to develop a state digital infrastructure company and high-performance computing and data processing centre.

It also aims to consolidate excess capacity of publicly-funded data centres and deliver processing, data facilities and cloud computing capacity. Government plans to develop ICT special economic zones, hubs and transformation centres.

In its draft policy, the department states: “South Africa’s effective response to challenges will depend significantly on the extent to which it exploits opportunities presented by the digital economy, through the development of policy frameworks that harness the economic and social potential of data and cloud computing.

“At the same time, the data policy indicates a willingness to address issues such as SMME access to digital technologies, a lack of digital skills in the country, and the barriers to entry preventing millions of South Africans from benefiting from the 4IR [fourth industrial revolution].”

The panellists shared their concerns around the ambiguous approach to state data governance, particularly as it pertains to data ownership and cross-border data flows.

Given the multi-dimensional nature of data, concerns were also raised on whether it is possible to address all the relevant issues in one policy, as well as whether it is within the remit of the CDT minister to do so.

In line with RIA’s mission to accelerate digital equality in Africa, Gillwald expressed the need for policies that support data justice – premised on the recognition of the African context, and specifically the lack of institutional endowments faced by many African countries.

She noted the draft policy should frame data as creating value through real-time data flows and confluence, rather than as static, exclusively-controlled databases.

“There are three problematic assumptions that underlie the protectionist approaches to data solutions: the first is a belief that because data is valuable in the digital economy, its value is best extracted from seeking excludability; the second is that data infrastructure and data needs can be conflated; and the third is that personal data necessities align with all data necessities.”

RIA is among the organisations that submitted written comments to government, sharing several advantages and concerns around the proposed law.

Gillwald believes policy should hold countries to international rights standards. While this is not an easy task, she warned no matter how good the policy is, if SA doesn’t have the capacity to implement it, it can do more harm than good.

Razzano highlighted important acknowledgements in the policy: harnessing the benefits of technology is identified as contingent on infrastructure; the need to support local innovation communities is well-raised; the need for public data practices and capacities to be a priority is vital; and the central role that open data ecosystems play in deriving digital benefits.

However, she pointed out several concerns: “These acknowledgements do not resonate sufficiently strongly in the proposed policy interventions and this may be due to the focus placed on data in the policy, which positions it as the infrastructure for production, rather than a factor of production which requires infrastructure.

“This view of data as infrastructure leads to a focus on solutions, which hinge on excludability through ownership rather than the real benefit of data which is through its flows, transfers and other utilities.”

Fredriksson echoed Razzano’s sentiments on the policy’s focus on data ownership, elaborating that raw data carries little value and only gains value when it is processed in a way that generates digital intelligence.

He questioned the strict approach in the proposed policy to data localisation and its low emphasis on cross-border data flows.

“You want to be able to adopt national restrictions on data flows to achieve legitimate public objectives, but do not want to do it in a way that harms the proper functioning of the Internet or adds tremendous extra costs to small or even large businesses,” according to Fredriksson.

Souhil reflected on the African Union Commission’s own efforts to create a harmonised digital environment among member states through theDigital Transformation Strategy for Africa (2020-2030). This strategy seeks to harness digital technologies and innovation to transform African societies and economies to stimulate job creation, break the digital divide and eradicate poverty, among other objectives.

“The continent is in need of data governance frameworks, which enable data flows to create data ecosystems that can avail data for the development of industries, research and data analytics, and enable evidence-based policy-making,” advised Souhil.

Campbell echoed that “the policy potentially places commercial limitations on the operations of multinational companies in SA, particularly concerning the custodianship of data”.