The planned snooping of Kenyans cell phone records by a state agency hit a snag on Monday after Court suspended the installation of system of the proposed monitor following a petition by a seasoned activist.
Activist Okiya Omtata moved to court on Friday under a certificate of urgency after the government announced that beginning Tuesday, it was going start listening to phone calls, reading text messages and reviewing mobile money transactions. The case is set for mention next Thursday although the suspension order stays until the matter is determined.
An activist who normally uses the courts to challenge government orders, Omtata has made a name for himself because he does all this pro bono. He has been assaulted by suspected state hirelings for his hardline stance but he has shown no signs of backing down in his quests for justice for Kenyans.
The government had announced that through the Communications Authority of Kenya, it had ordered mobile phone companies to allow it to tap their computers. The tapping into these computers was to be done by a company contracted by the agency.
Though the reason given for the tapping is tracking counterfeit devices, the minute it starts, 40 million Kenyans are expected lose their privacy.
Usually, governments can listen to private conversations and access personal data, but by law they need to have a good reason and get a warrant from a judge. Additionally, Kenya has no data protection law, so people who gain access to others’ personal information can abuse it.
The authority had already written to mobile phone service providers setting up dates for the plugging of the snooping device, with some as close as Tuesday next week.
It will involve the third party company getting hooked up to all routers at providers Safaricom, Airtel and Orange Telkom, effectively opening up private communication data to an entity other than those licensed to hold them and the government.
This will rekindle memories of 2015 when the government bulldozed its way using the parliamentary majority the governing party enjoys to pass security laws which many felt were infringing on their rights.
However, the opposition Cord party and the government-constituted Kenya National Commission on Human Rights went to court and had some eight offensive clauses in the controversial Security Laws Act declared unconstitutional, striking a blow against the government’s push for tough measures to curb terrorism but signalling a victory for citizen freedoms and human rights.
Media practitioners were among the winners after part of the new law, which would have seen them pay up to a Sh5 million fine or serve a jail term of three years for publishing or broadcasting images of terror attacks, was declared unconstitutional.
“Insecurity in Kenya is not due to absence of laws but inefficiency of public bodies mandated to secure Kenyans,” the judges ruled. “Even the Attorney General conceded during the hearing that there is corruption and lack of coordination among security agencies to curb terror threats.”
The judges chose to strike a balance between protecting the rights of citizens and the need to have laws to counter threats posed by terrorism by declaring the eight clauses unconstitutional, null and void while upholding several other contested clauses.
“Section 12 of the security law is unjustifiable in any democratic society to the extent that it purports to limit media freedom. We find it unconstitutional for violating the freedom of expression and media as guaranteed by the Constitution,” ruled the judges.
In this latest attempt, the local media reported that they had obtained a copy of a letter addressed to one of the operators, asking it to authorise the third party to install the link that would open up SMS, call and mobile money transfer data to the third party as the plan takes shape quietly.
“Kindly facilitate our principal contractor, M/S Broadband Communications Networks Ltd, to access your site and install the link at the data-centre or the mobile switching room," read part of the letter.
M/S Broadband Communications Services Ltd was awarded the Sh207.2 million tender to design, supply, deliver, install, test, commission and maintain the device in September 2016.
Before the hook-up, the authority and the contractor were to survey all the operators’ sites and a January 31 letter announced the intended visit. But in a strange twist, the regulator later converted the survey into the actual installation, heightening suspicion.
Of bigger concern to the operators is that the company contracted by the authority, which does not legally bear the responsibility to protect customer confidentiality, will get direct access to call data before transmitting it to the regulator, splitting responsibility between three parties and leaving users exposed to intrusion of privacy.
A source privy to the system said the need to tell fake devices from genuine ones will only need a check on the unique 15-digit code called International Mobile Equipment Identity or IMEI. The number, usually found behind phone batteries, is given to every handset and whenever it is connected to a network, the number can be accessed in a database Equipment Identity Register.
Kenya Revenue Authority has made previous attempts to access M-Pesa mobile money transaction records to catch tax cheats, a move Safaricom, which has 26.6 million customers, resisted, citing the need for proper legal backing.
Airtel Network Ltd has 6.7 million subscriptions, Telkom Kenya Ltd 2.9 million while Finserve Africa Ltd and Sema Mobile Services Ltd subscriptions stand at 2.2 million, according to the latest statistics.
Private communication data sitting with the regulator would probably be unsafe from outside parties.
The Communications Authority, whose website was hacked in January alongside that of the National Environment Management Authority, also leaves the public exposed to such breaches in a country where cybercrime is on the rise.
A hacker group calling itself AnonPlus defaced the CA homepage by posting a manifesto promising to “defend freedom of information, freedom of the people and emancipation of the latter from the oppression of media”.