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KUB 420 Theme 1: Introduction to ICT Telecommunications Law

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  • Course
  • KUB420 (KUB420)
  • Institution
  • University Of Pretoria (UP)
  • Book
  • Cyberlaw @ SA III

These notes were compiled according to the study guide and constitute a consolidation of the Narrated Powerpoints, the prescribed textbook (Cyberlaw@SA III) and the relevant prescribed material. The self-evaluation questions with relevant answers have also been included.

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  • September 1, 2020
  • 33
  • 2020/2021
  • Class notes
  • Unknown
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  • cyberlaw
  • cyber law
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🗼
Theme 1: Introduction to ICT &
Telecommunications Law
“The internet is a distributed international network of
computers that has revolutionised the way we communicate
and construct knowledge. Developed as an aid to military
defence in the late 1960s, the internet grew through the
1970s and 1980s on the back of academic and research
institutions. With the rise of the personal computer PC the
internet became more widely available, exploding into
popular consciousness in the mid to late 1990s.”


Telecoms
There is still some debate as to whether/not we have moved from an
industrial age to an information age

In an information age/society, information becomes a core economic
and cultural resource since everything we do is intimately connected
to information creation, retrieval, processing and management



📌 The concept of "Information Society" has been described as a
society in which information becomes a core economic, cultural
and social resource


Digital Economy
Digital economy - e.g. UK which has special legislation aimed at
stimulating the UK's digital economy

The digital economy is the global network of economic and social
activities made possible by ICT like the internet and mobile


Theme 1 Introduction to ICT & Telecommunications Law 1

, networks

The digital economy includes games, consoles, phones and other
devices used everyday

It also includes paying for goods with cards

Research shows that the digital economy can boost productivity
and the global competitiveness as well as social wellbeing quite
significantly

The EU has agreed that the digital economy is the single most
important driver of innovation, competitiveness and growth

It therefore makes sense to have a national digital economy
strategy, which SA did not have until April 2013 when the proposed
Broadband Policy was first published for comment

It was later adopted in November 2013 and is now known as
the South Africa Connect (our digital economy policy)

Government has acknowledged that there are well-documented
links between investment in electronic communication
infrastructure and economic growth and development and that
there are direct correlations between broadband penetration and
increases in a country's GDP with new jobs, broadening and
widening of educational activities, enhanced public service delivery
and rural development

According to the UN and countries like Finland and Estonia, internet
access is a basic legal right for citizens that falls into the same category
as access to basic infrastructures like roads, water and sanitation

In Finland, there was the aim to provide 99% of the population with 100
mb/s broadband by 2015/2016 which they nearly managed to do

In Europe there is a policy known as the digital agenda which requires
members states to bring a minimum level of 30 mb/s to all citizens by
2020

How did we get to digital economies and digital agendas/strategies?

Two things:

 Computers; and

 The internet


Theme 1 Introduction to ICT & Telecommunications Law 2

, What is the internet and where does it come from?
Key feature is the end-to-end or E2E design principle:

It means that the communication pathways, i.e. the lines that connect us,
are neutral and that the intelligence in the form of software applications
design and customising is added at the ends by an end-user

This is also at the heart of the net neutrality debate



🗝 Key feature of the internet is that its core communication
infrastructure is seen to be "neutral" with the "intelligence"
applied at the "ends" i.e. the so-called end-to-end E2E design
principle


Net Neutrality
Net neutrality is about ensuring that there is always a free flow of data
or information

Net neutrality is about treating all web traffic equally

Therefore you may not try and regulate the internet by
differentiating the speeds at which different types of content are
communicated or processed

If, for e.g., telecoms companies were allowed to block websites or
provide preferred priorities to others, what would happen?

Consider Telkom, for example:

Telkom provides our access to the internet so if they decided
to slow down your internet access speed every time you used
Skype, or VOIP services to such an extent that you cannot use
these services as a way to control competition and preserve
their income, would it be fair? No

What about charging you more for access to popular websites
like Facebook to make more money, would that be fair? No

This is what net neutrality is all about – making sure that all
content is delivered at the same consistent speeds and price and
treating all websites and services equally, otherwise how and




Theme 1 Introduction to ICT & Telecommunications Law 3

, what we access will be controlled by the big corporations and
monopolies which has enormous effects on freedom of expression

In SA, we don't have net neutrality legislation in place

It is an open fact that traffic prioritising and traffic shaping takes
place, which is even advertised by some ISPs

There have been complaints about mobile cell phone operators
stopping users from using VOIP apps on their cell phones – Why? –
Because using these services provides a way for users to circumvent
standard cell phone rates and make calls to others much cheaper than
what normal mobile rates are

So, in the EU and the USA, they have some form of regulation that
ensures a level of net neutrality

Under the Trump Administration, there was discussion on relaxing
of net neutrality rules and as a consequence all of the big
corporations like Google in America held a protest against the
proposals to relax the net neutrality rules

In SA, we have also had a lot of noise about regulating the so-called over-
the-top internet services, where you had your mobile network services and
Telkom complaining about services like WhatsApp and Skype

It even went as far as hearings to determine the impact of these over-
the-top services on competition in the local market

The main argument made for regulation thereof made by e.g. MTN and
Vodacom, was about the unequal distribution of operational and
infrastructure costs i.e. their argument is that over-the- top services
don't invest in infrastructure, whereas they had to do so

OTT (over-the-top services) don't pay for infrastructure, don't need
licenses and don't pay local taxed

They don't have the same local constraints like requirements under
RICA to have the capability to intercept and the telecoms companies
Vodacom, MTN etc.) had a large revenue drop due to the increase in
demand for the voice and messaging services

We are currently waiting for a new policy from Government where Net
Neutrality will clearly have to be addressed and these
concerns/debates will need to be addressed


Theme 1 Introduction to ICT & Telecommunications Law 4

, What is the internet and where does it come from?
The Internet has its origins in the US military and the NIC Network
Information Centre) which was part of the Stanford University Research
Institute in the 1960s

Initially, it was a top-secret US military communications system and then
the universities across the US became involved which then led to the world
becoming involved

Slowly, universities were allowed access to this system and as a result, the
system was improved, developed and expanded throughout the 1970s and
1980s

However, it ran through computers which filled an entire room

The internet was finally made public in the 1990s and since then its use
has been exploded, brought to SA by Mike Lowrey and colleagues at
Rhodes University in 1988

According to Section 1 of the ECT Act 25 of 2002, the definition of
the internet is as follows:

Section 1 of the ECT Act 25 of 2005
The internet is an interconnected system of networks
that connects computers around the world through a
software protocol known as TCP/IP (transmission
control protocol)/(Internet Protocol)

The phrase 'internet' therefore comes from the phrase
'informational network'

The word internet refers to an "international network" of computers
that can communicate with one another through the use of packet
switching, a digital communications method

Packet switching was best described in the case of In re DoubleClick
Privacy Litigation:




Theme 1 Introduction to ICT & Telecommunications Law 5

, ⚖ In re DoubleClick Privacy Litigation
Packet switching works as follows: The computer wishing to send a
document ("originating computer"), such as a music file or digital
image, cuts the document up into many small packets of
information. Each packet contains the Internet Protocol IP
address of the destination Web site, a small portion of data from
the original document, and an indication of the data's place in the
original document. The originating computer then sends all of the
packets through its local network to an external "router". A "router"
is a device that contains continuously updated directories of Internet
addresses called "routing tables". The router takes each packet
form the original document and sends it to the next available router
in the direction of the destination Web site. Because each router is
connected to many other routers and because the connection
between any two given routers may be congested with traffic at a
given moment, packets from the same document are often sent to
different routers. Each of these routers, in turn, repeats this process,
forwarding each packet it receives to the next available router in the
direction of the destination Web site. Collectively, this process if
called "dynamic routing".




The result is that packets of information from the originating computer
may take entirely different routes over the Internet (i.e. traveling over
different routers and cables) to their ultimate destination




Theme 1 Introduction to ICT & Telecommunications Law 6

, Obviously, the packets arrive out of their original order because some have
been forced to take much longer or slower routes between the originating
and destination computers

However, because each packet contains code that identifies its place in
the original document, the destination computer is able to reassemble
the original document from the disorganized packets

The receiving computer will send a message back to the sending computer
either confirming all the packets arrived, or it requests the sending
computer to send the missing packets

This happens in a matter of seconds and is made possible by using the
TCP/IP protocol

A 'protocol" is a format or procedure or technical specification on how
a communication system works

The IP protocol moves the packets of data from node to node based
on a destination address known as an "IP Number"

The TCP protocol is responsible for verifying the correct delivery of
data - if any defects or errors are present in the message, it triggers a
re-submission of data until the data has been correctly delivered

The end-user will usually connect through an internet service provider
ISP who will operate the servers

Is there a difference between the Internet and the
WWW/World wide Web?
Yes

The internet is widely recognised as the physical structure, i.e. the
servers, the computers, the fibre optic cables and the routers through
which data is shared

The world wide web WWW is the data – an immense collection of
documents, texts, images, audio clips etc. that is stored and made
available through the TCP/IP protocol

Each document, image or clip has a unique URL Universal Resource
Locator) that identifies its physical location in the internet
infrastructure and users access these by sending request messages to
the servers that store the data



Theme 1 Introduction to ICT & Telecommunications Law 7

, Overview of SA Legislation
The Constitution

Supremacy

Main focus is on:

Section 14 of the Constitution (right to privacy)

Section 16 of the Constitution (right to freedom of expression)

Section 32 of the Constitution (right of access to information)

All these rights are given effect to in the Promotion of Access
to Information Act 2 of 2000

The Promotion of Access to Information Act 2 of 2000 PAIA

This legislation exists to give effect to the constitutionally guaranteed
right of access to information and it allows access to both hard copy
(written) and electronic records that contain personal information

To access information or records in either the public or private sectors
certain conditions need to be met, such as:

The information/record is required for the requester to exercise or
protect rights (section 9(a))

All proper procedures are complied with (section 111)(a))

The information requested should not fall within the categories of
mandatory or discretionary grounds for refusal (section 111)(b)
and sections 3346

It is further an offence to destroy, damage, alter, conceal or falsify a
record with the intention to deny a requester's access to the record
(section 90

The Act does however protect against unreasonable privacy
infringements, and provides some transparency on what and how
information should be kept (sections 3463

The Electronic Communications and Transactions Act 25 of 2002 ECT
Act)

Regulation of electronic communications and transactions




Theme 1 Introduction to ICT & Telecommunications Law 8

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