A South African Legal Perspective on the Regulation of Net Neutrality and Its Implications for Cyber-Security and Cyber-Warfare

Introduction

With reference to Hartman and Giles (2018) net neutrality or network neutrality refers to the basic principle that all Internet Service Providers (ISPs) should “treat all Internet communications equally without discrimination”. Further to this net neutrality should be regarded as a set of principles and not a technical implementation. This may include service charges that are incurred differently based upon either the user, the content, the website or means of communication. Internet service providers (ISPs) are not permitted to intentionally “block, slow down, or incur monetary value” for any online content. Without net neutrality regulations, ISPs would be able to prioritize certain types of traffic and even potentially block traffic from specific services. ISPs may even charge users depending on the type of service (Gilroy, 2011). The concept of net neutrality is deemed to predate the Internet technology era, existing since the time of the telegraph. With the development of the telegram a federal law (Pacific Telegraph Act) had to be introduced 1860 in order to subsidize a telegraph line, stating that:

The act was created to facilitate communications between the Atlantic and Pacific states by electric telegraph on June 16, 1860. With the advent of the Internet in modern times, it was deemed necessary that governments have the right to regulate internet usage. Whilst some control is necessary, these regulations are said to create more issues specifically regarding cybersecurity and cyberwarfare. It is important to note that both malicious and legitimate actors have attained comparable capabilities in the age of the Internet. However, with net neutrality regulations being implemented, it has also created a situation where legitimate actors have become restricted by legal and political restrictions, in most cases rendering them immobile in cyberwarfare instances. According to Hartman and Giles (2018), the transference of the principles relating to net neutrality into reality would correlate to the deprivation of the military, police and emergency operators from any sort of privilege that permits them in effectively responding to an incident. This may in turn deprive them of blue light privileges even in responding to severe critical incidents.

Cybersecurity And Cyberwarfare

Cybersecurity involves the practice of “protecting systems, networks, and programs” from cyber-attacks (Cisco, 2020). These cyberattacks are known for accessing, often editing and/or destroying important and sometimes sensitive information. It may also include the extortion of money from users and/or the disruptions of normal business processes. Having more technology means that there are now more devices than people, and this creates challenges in the implementation of effective cybersecurity. Further to this, vulnerabilities in cyber systems open the door to cyber attackers who are becoming more innovative.