Sanctioned Snooping?

Kenya Is Toying With Dismantling Privacy & Accessing Citizens’ Messages At Will

By  |  December 15, 2020

Fast-rewind to 2017 and there’s that awkward battle that the Communications Authority of Kenya (CA) somehow got embroiled in.

During that period, the State regulator was basically pushing mobile network operators (MNOs) in the country like Safaricom, Airtel Kenya, and Telkom Kenya to do something weird.

The CA wanted the telcos to install a Data Management System (DMS) on all devices on their networks. The regulator first argued that the purpose of this push is all about detecting fake mobile devices.

Then, in a separate letter dated January 31, 2017, the CA admitted that part of the intention behind the DMS is to access information and to safeguard against cybercrime.

The telcos begged to differ. They resisted the push on the grounds that Kenya’s communications watchdog was, in their view, championing spyware that eavesdrops on people’s calls, read their messages, and also track their financial transactions.

The matter was eventually argued in court and the Kenyan judiciary declared the move illegal as it would be tantamount to intrusion into people’s privacy. It was a decision that dealt a blow to the State’s bid to curb what it argued was a spike in cybercrime.

The State pretty much lost its bid to install surveillance gadgets on mobile phones that would be used to spy on calls and messages, and things sort of grew quiet on that front after that ruling.

But fast-forward to 2020 and the State seems to be going at it again. This time, there’s a new push that slaps a 1-year jail term or KES 1 Mn (USD 8.9 K) fine or both on Kenyans who refuse to disclose SMSs, emails, and WhatsApp messages that the government believes breach national security.

It’s all part of a proposed new law that is going through the motions in parliament but the aforementioned detail is the implication of the proposed legislation in a nutshell. It’s the latest effort at updating a law that was passed more than 50 years ago.

The Statute Law (Miscellaneous Amendments) Bill 2020 is a “variety” Bill that seeks to change various Kenyan laws. And one such bill is out to amend the Official Secrets Act of 1968 to make it compulsory for anyone who owns a mobile phone or communication gadget to provide information on persons and data that the State deems a national security issue.

Gadgets owned by Kenyans that have been used in foreign countries to send information through channels like SMSs, emails, and WhatsApp to the country, are also included in the scope of the new laws.

The proposed amendment has it that those who fail to provide the records or persons of interest to the security agencies risk a fine of KES 1 Mn (USD 8.9 K) or a jail term of up to one year or both, signalling the State’s latest push to fight crimes such as money laundering, terrorism, and cybercrime.

“Any person who owns or controls any telecommunications apparatus used for the sending or receipt of any data to or from any place outside Kenya, to produce to the Cabinet Secretary or any person named in the order, the original or transcripts of all such data,” reads a portion of the Statute Law (Miscellaneous Amendments) Bill 2020.

“Any person who fails to comply with a request made under sub-section shall be guilty of an offense and liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year, or to both.”

Apart from the fines and penalties, the Bill also seeks to “update” the wordings used in the current law that was over half a century ago to meet up with the changes and trends in today’s telecommunications industry.

As an example, the proposed law looks to replace things like “telegram apparatus” with  “telecommunications apparatus.”

Generally, this development as a whole seems like a reflection of outsized and over-inflated efforts at fighting criminal activity in a country, even though it comes with a reason as Kenya is bedeviled with a rise in crimes committed through mobile phones and communication gadgets that have been blamed on weak laws.

The spate of criminal activity saw Kenya get flagged by the United States as a global hotspot for money laundering and a conduit of money used to fund terrorism due to insufficient legal controls.

The blacklisting happened last year and it is not far-fetched to think that the now intensified attempts to sanction “spying” is not unconnected to the growing apprehension.

But the obvious privacy concerns and infringements associated with the proposed new law will surely be a sticking point.

Featured Image Courtesy: The Intercept

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