Communications Authority revives court bid to fix spy gadgets on phones


Communications Authority revives court bid to fix spy gadgets on phones

Safaricom customer service shop on Kimathi Street, Nairobi. PHOTOS | NMG

The communications regulator has renewed its push to install a device on mobile phone networks to detect counterfeiting, fearing it could give the watchdog access to other customer data, including calls, messages and financial transactions.

The Communications Authority of Kenya (CA) wants the court to overturn rulings that blocked the rollout of device management systems (DMS) in 2018.

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The regulator denies DMS has the ability to access subscribers’ phone records, location and mobile money transaction details, insisting the technology can only detect and record unique mobile phone ID numbers and assigned subscriber numbers.

Safaricom had raised concerns that the monitoring devices would give the regulator access to other customer data held by telecoms operators.

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Busia Senator Okiya Omtatah won the orders blocking the installation of DMS, arguing that it would allow the regulator to spy on private conversations and access sensitive customer data.

In the appeal, CA stated that it did not intend to spy on customer information and that the tracking devices would be used to crack down on illegal mobile devices operating in the market without infringing on customer privacy.

“In this regard, we do not claim that the DMS device does not and is not intended to violate the right to privacy of subscribers and that less restrictive means have not been proven to combat the illegal devices,” said Wambua Kilonzo, lawyer for the CA, said.

The lawyer said the High Court erred in its decision because DMS does not have the capacity to invade the privacy of subscribers.

“In any case, the right to privacy is not an absolute right, and combating illegal harmful devices would be a legitimate cause,” he said.

CA filed the appeal because the deadline for SIM card registration, which was extended by six months in April, is fast approaching on October 15. The High Court declared the AC decision unconstitutional as it gave no guarantee that it would not be used. by third parties to access private information.

In January 2017, CA had written to Safaricom, Airtel and Orange (Telkom) demanding that a contractor it had hired be allowed access to operator sites to install the spying device, sparking a public outcry.

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The telecommunications market regulator had defended the move on the grounds that it would help weed out counterfeit phones from the local market.

Omtatah questioned the AC’s intent, arguing that the regulator had not invited public participation as required by law before implementing the system.

Safaricom, which was named in the case as an interested party, revealed that it had raised questions about the privacy of the data the device would collect, as well as security agreements with the regulator, but none have been resolved. The Supreme Court concluded that the CA did not have the mandate to combat the use of counterfeit products in the Kenyan market, noting that the law assigned this role to the Anti-Counterfeiting Agency.

Counterfeit phones, imported mainly from Asia, are widespread in many African countries, and regulators say they are widely used by criminals because they are difficult to trace.

CA has already disabled counterfeit mobile phones, but it says consumers are still exposed to such devices, hence the need for a better monitoring system. In the appeal, the regulator says it is mandated to monitor compliance with the Kenya Information and Communications Act (KICA) and that the DMS was not a new policy but only meant to control the spread of illegal devices.

The authority further claims that the case was based on hypothetical situations and that Mr. Omtatah did not provide evidence to support the existence or possibility of violation of anyone’s fundamental rights.

Kilonzo further said reliance was placed on unknown technical experts and that the allegations of espionage were general and vague as the allegations were based on newspaper clippings and no other evidence.

“It is now an accepted legal principle that a court should not engage in abstract arguments. The court is prevented from ruling on a case when it is too early or simply out of fear, hence the principle of ripeness,’ argued the lawyer.

The regulator said the court ignored its arguments on Kenya’s obligation under the Convention of the International Telecommunications Union (ITU) to curb the spread of counterfeit telecommunications equipment, as dictated by Resolution 79 (Dubai, 2014) of the ITU Telecommunication Standardization Sector. The fight against illegal and counterfeit devices began in 2012 and has continued in various aspects since then, AC argued.

The regulator said the implementation of DMS is still at the stage of formulating parameters and forming committees.

“Implementation was to be phased to ensure sufficient time to educate and seek public compliance had not yet begun contrary to the court’s finding,” Mr Kilonzo said.

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