CCK monitoring of Internet and mobile usage unlawful, says lawyer

A Nairobi lawyer has said plans by industry regulator the Communications Commission of Kenya (CCK) to monitor SMS text messages and assign virtual IDs to Internet users are privacy violations.

The CCK announced the new measures as it looks to cut down on hate speech and cybercrime in Kenya.

But according to Nairobi lawyer George Kithi, such monitoring could border on infringement of personal privacy under Kenyan law.

He warns that continued blanket surveillance on citizens by the government could pose legal challenges with regard to technology and privacy in the age of information.

“The Kenya police, national cohesion and integration commission as well as CCK have admitted to be monitoring online speech and mobile phone text messages with the justification of arresting hate speech before it spreads,” he said.

Kithi told HumanIPO that although this blanket monitoring could reduce cases of hate messages ahead of the general elections, such evidence is unlikely to lead to prosecution as the activity in itself is illegal.

“It is not clear what the results of the monitoring are or what has been done with suspected perpetrators of hate messages as this monitoring is not provided by law,” he said, adding that such practices are a direct threat to free speech, with the effect of this monitoring manifesting in the behaviour of bloggers.

He notes that a number of seasoned bloggers have been avoiding the use of certain words that are believed to raise red flags in the monitoring system.

In the recent past, a number of bloggers have found themselves on the wrong side of the law, with tech blogger Robert Alai protesting that personal information was accessed by police to harass him.

On Internet monitoring, Kithi adds that the law is unclear in certain quarters, especially regarding social media. He explains that although a number of defamation cases involving messages on social media are in court, it is not clear on whether defamation laws enacted in the 1970s can apply.

“With archaic and non-responsive laws in place, there exists a great need to have comprehensive laws in place to tackle challenges associated with technology,” he explained.

Under the Prevention of Terrorism Act 2012, regulators can obtain information through interception of communications but with court order. It states: “A police officer of or above the rank of chief inspector of police may, for the purpose of obtaining evidence of the commission of an offence under this Act, apply ex parte, to a subordinate court for an interception of communications order.”

Posted in: Telecoms

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