The communications regulator has revived the push to instal a device on mobile phone networks to detect counterfeits amid concerns it will give the watchdog access to other customer data, including calls, messages and financial transactions.
The Communications Authority of Kenya (CA) wants the court to lift orders that blocked the rollout of the Device Management Systems (DMS) in 2018.
The regulator denies that the DMS has the capacity to access the phone records, location, and mobile money transaction details of subscribers, insisting that the technology can only detect and record the unique identification number of mobile phones and assigned subscriber numbers.
Safaricom had raised concerns that the monitoring devices will give the regulator access to other customer data held by the telecom operators.
Busia Senator Okiya Omtatah obtained the orders blocking the installation of DMS, arguing that it would allow the regulator to snoop on private conversations and gain access to sensitive customer data.
In the appeal, the CA said it had no intention of snooping on customers’ information and that the monitoring devices would be used to crack down on illegal mobile devices operating in the market without infringing on consumers’ privacy.
“In the foregoing regard, it is not our submission that the DMS device does not and is not intended to infringe the right to privacy of subscribers, nor are there any proven less restrictive means of combating illegal devices,” Wambua Kilonzo, the lawyer for the CA, said.
The lawyer said the High Court was wrong in its decision as the DMS has no capability of infringing subscribers’ privacy.
“In any event, the right to privacy is not an absolute right and combating illegal harmful devices would be a justifiable cause,” he said.
The CA argued the appeal as the deadline for SIM card registration, which was extended in April by six months, is fast approaching on October 15. The High Court declared the CA’s move unconstitutional, as it gave no assurance that it won’t be used by third parties to access private information.
The CA had in January 2017 written to Safaricom, Airtel and Orange (Telkom) demanding that a contractor it had hired be allowed into the operators’ sites to instal the snooping device, sparking public uproar.
The telecoms market regulator had defended the move on grounds that it would help weed out counterfeit phones from the local market.
Mr Omtatah questioned the CA’s intention, arguing that the regulator had not invited public participation as required by the law prior to implementing the system.
Safaricom, which was enjoined in the case as an interested party, revealed that it had raised queries on the privacy of the data that the device would collect as well as security arrangements with the regulator but none was resolved. The High Court found that the CA has no mandate in combating use of counterfeit goods in the Kenyan market, noting that the law has assigned that role to the Anti-Counterfeit Agency.
Counterfeit phones, imported mainly from Asia, are prevalent in many African nations and regulators say they are widely used by criminals because they are difficult to track.
The CA has switched off counterfeit mobiles in the past, 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 has the mandate to monitor compliance under the Kenya Information and Communications Act (KICA) and that the DMS was not a new policy but only meant to control proliferation of illegal devices.
The authority further says the case was premised on hypothetical situations and that Mr Omtatah did not provide any supporting evidence of the existence or possibility of breach of fundamental rights of any persons.
Mr Kilonzo further said unknown technical experts were relied upon and claims of snooping were general and vague as the allegations were based on newspaper clippings and no other evidence.
“It is now an accepted tenement of the law that a court of law is not expected to engage in abstract arguments. The court is prevented from determining an issue when it is too early or simply out of apprehension, hence the principle of ripeness,” the lawyer submitted.
The regulator said the court ignored its arguments on Kenya’s obligation under the Convention of the International Telecommunication Union (lTU) to curb the proliferation of counterfeited telecommunication devices as dictated by Resolution 79 (Dubai, 2014) of the Telecommunication Standardisation Sector of the ITU. The fight against illegal and counterfeit devices commenced in 2012 and has been ongoing in different aspects since then, the CA argued.
The regulator said the implementation of the DMS was still at the stage in which parameters were being formulated and committees formed.
“The implementation was to be in phases to ensure adequate time to educate and seek compliance from the public, had yet to commence contrary to the conclusion of the court that it had,” Mr Kilonzo said.