CCK trashes telecom users’ privacy with new spying rules

Communications Commission of Kenya headquarters in Nairobi. FILE 

By OKUTTAH MARK, mokuttah@ke.nationmedia.com

In Summary

• The Communications Commission of Kenya (CCK) proposes regulations that give it unfettered access to data held by operators.
• Consumer rights activists said the regulations are particularly in breach of people’s right to privacy as provided for in the Constitution.
• Article 31 of the Constitution guarantees citizens’ right to privacy, including the right not to have the privacy of their communications infringed upon.

• CCK trashes telecom users’ privacy with new spying rules

Telecommunications industry regulator, Communications Commission of Kenya (CCK), is set to acquire a new set of powers that will give it unfettered access to private or confidential information on consumers without a court order.

The powers, which are contained in a new set of regulations that has been prepared for publication in the Kenya Gazette, allow the CCK or its agents the leeway to obtain information or data held by telecoms operators.

“A licensee shall grant the Authority’s officers access to its systems, premises, facilities, files , records and other data to enable the Authority inspect such systems, premises, facilities, files, records and other data for compliance with the ACT  and these regulations,” state the proposed regulations.

They open yet another avenue through which the government will eat into the citizens’ rights
provided in the Constitution. Consumer rights activists said the regulations are particularly in breach of people’s right to privacy as provided for in the Constitution.

Article 31 of the Constitution guarantees citizens’ right to privacy, including the right not to have the privacy of their communications infringed upon.

The CCK said it has relied on Article 35 of the Constitution to formulate the new rules.

“In this respect, Section 93 of the Kenya Information and Communications Act, 1998 provides for the manner in which such information is to be applied. The said section provides that access to

information and restrictions on disclosure of information held by the Authority shall be implemented pursuant to Article 35 of the Constitution. It is noteworthy that the said Article binds all State organs and persons,” said the CCK in response to questions on the subject.

Article 35 grants citizens the right to access information held by the State or by another person and is required for the exercise and protection of any rights or fundamental freedom.

A recent court decision on the exercise of the rights granted under Article 35, however, expressly excludes companies or agencies such as the CCK from accessing information held by another person or organisation.

The High Court ruled in the Nairobi Law Monthly versus KenGen case that only a human person (not a company or agency) can access information held by others as provided for under Article 35.

The CCK’s quest for unfettered access to telecoms services consumers’ data comes at a time when the world is grappling with the dilemma of balancing the right to privacy in the wake of security threats associated with terrorist groups such as Al-Shabaab and Al-Qaeda.

The US government was last year thrown into a legal and diplomatic crisis following revelations by a former national security contractor Edward Snowden that its secret agencies routinely spied on and recorded telephone conversations of ordinary people and prominent world leaders such as German Chancellor Angela Markel.

The Obama government has since acted swiftly to restore public confidence in its commitment to the protection of personal liberties even in the face of rising security threats – a matter that does not seem to bother the formulators of the new CCK regulations.

The regulations are contained in the Kenya Information and Communications (Registration of subscribers of telecommunication services) Regulation, 2014, and are derived from the controversial Kenya Information and Communication Amendment Act (Kica) 2013 that was gazetted on January 10 and is set to come into force this Friday.

KICA 2013 removed all safeguards for citizens’ privacy by deleting Section 93 of the law that defined how the regulator or government agencies accessed information on citizens and replaced it with reference to access of information in accordance with Article 35 of the Constitution.