Telecoms regulator seeks powers to spy on consumers

Kenya’s telecommunication sector regulator is seeking fresh powers to spy on consumers that could see users of voice and data services lose their privacy to State and security agencies without their knowledge.

The regulator also wants powers to put any mobile service operator that refuses to provide this unlimited access out of business temporarily.

Newly-published proposals that will become part of the licensing conditions for service providers indicate that the Communications Authority of Kenya (CA) wants unlimited access to subscriber’s data without court orders.

Currently the authority needs a court’s permission to get such access.

The regulator says it needs unlimited access for investigations and inspections to ensure operators’ services meet set quality thresholds.

Human rights activists see the proposals, which are currently undergoing stakeholder consultation, as the latest effort by the government to infringe on civil freedoms and citizens’ privacy using the veil of security.

READ: CCK trashes telecom users’ privacy with new spying rules.

So far, the CA has relied on the Kenya Information Communication Amendment Act of 2013 to obtain confidential consumer information or data. The law, however, requires such requests to be backed by a court order. It does not authorize the regulator to suspend or revoke the licence of any operator who refuses to comply as proposed in the new rules.

Francis Wangusi, the CA director-general, said the proposals are meant to align telecoms sector regulations with the provisions of the Penal Code and to ensure that the authority is facilitated during its investigations.

“Having the regulations as part of the licensing conditions makes them more specific to the operators and ensures that the penalties, which include suspending or revoking of an operator’s licence, are better defined,” Mr Wangusi said.

The CA says the amended regulations will apply to all the licences currently held by the existing operators as well as future ones.

Ongoing public consultations over the proposed regulations are open till November 17 this year.

Under the new conditions, the authority is also seeking powers to suspend a licence or a service provided by a licensee. Mr Wangusi says the provision seeks to address serious cases of non-compliance with CA orders.

“We started renewing the first-term licences for mobile network operators but such renewal may not be automatic for the second term,” he said.

Safaricom early this year had its licence renewed for a 10-year term ending in 2024 after it paid $27 million (Sh2.34 billion) to the regulator who responded by relaxing the quality standards conditions.

READ: Safaricom pays Sh2.3 billion licence fee ahead of deadline.
Safaricom’s inaugural permit was issued in July 1999 for a term of 15 years at a fee of $55 million (Sh4.75 billion).

Kenya’s second-largest telecoms service provider Airtel’s licence is coming up for renewal in June next year.

The CA has produced a series of reports in the past three years showing that nearly all the operators have not met the set quality measures.

The regulator expects an operator to achieve an average score of 80 per cent on the eight indicators, including speech quality, completed calls, call success rates and call drop rates.

Safaricom, Airtel and yuMobile tied on a score of 50 per cent in the year to June 2013 while Telkom Kenya had a 62.5 per cent rating — meaning all the operators failed the quality test.

READ: Safaricom deal on service quality eases renewal of licence.

The CA also requires a licensee to have a subscriber management plan to ensure continuity in the event that its licence is not renewed or is revoked.

Besides the pursuit of spying rights, the CA is also seeking to institute regulations that will require the telecoms operators to keep the records for a minimum period of three years.

To encourage infrastructure sharing and colocation, the regulator has disallowed exclusive agreements between licensees and landlords that restrict access to the first entrant to a building.

If the proposed regulations become law, first entrants will be required to establish extra capacity to be shared by other operators. Mr Wangusi said the condition is aimed at eliminating anticompetitive behaviour in the increasingly lucrative segment of the telecoms market and to ensure new entrants do not interfere with existing infrastructure.

The current proposals add to an earlier set of regulations that allowed the CA or its agents the right to obtain information or data held by telecoms operators. The regulations sought to force a licensee to grant the authority’s officers access to its systems, premises, facilities, files, records and other data to enable inspection for compliance.

They were, however, seen to be in breach of Article 31 of the Constitution which guarantees citizens’ right to privacy, including the right not to have the privacy of their communications infringed upon.

Mr Wangusi has defended the clause saying access to the confidential information will only be allowed to authorised CA staff and law enforcement.

“There is no express authorisation that has been given to anyone to snoop on the subscriber’s data or information. However, there are some exemptions which include when someone is being investigated or a court has issued an order requiring certain information,” Mr Wangusi said.

Safaricom yesterday said it is taking all the required steps — including heavy investment in modern technologies and strict adherence to international best practice — to ensure that confidential information is not exposed to any outside parties.

“Confidential customer information cannot be accessed by any party other than the CA, upon request and in the usual course of their operations, or by law enforcement agencies in a criminal investigation,” Safaricom said.

The authority said that it is carrying out the proposed amendments under section 82 of Kenya Information and Communications Act (1) that allows it from time to time, modify any conditions attached to a licence under this Act.