Global human rights organisation Article 19 has warned that installing a tracking device on mobile phone networks will open up Kenyans to mass surveillance.
Article 19 says in an appeal pending before the Supreme Court that the installation of Device Management Systems (DMS) will subject the population to indiscriminate monitoring.
The Communications Authority of Kenya (CA) wants the court to drop petitions seeking to block the rollout of DMS amid concerns it will give the telecoms watchdog access to other customer data, including calls, messages and financial transactions.
The human rights organisation reckons that any system that generates and collects data on individuals without attempting to limit the dataset to well-defined targeted individuals is a form of mass surveillance.
“Surveillance opens a Pandora’s Box to a number of other human rights violations such as profiling. It is therefore clear that the DMS limits the right to privacy in a manner inconsistent with Article 24 of the Constitution,” Article 19 says in court papers.
The Law Society of Kenya (LSK) moved to the Supreme Court after the CA was allowed by the Court of Appeal to go ahead with installation of the gadget on condition that involved the public in the process.
The LSK says the DMS will not just be collecting mobile data from devices in the system, but it will also offer the ability of cross-referencing that data with personal data held in other government databases.
Conversations on mobile phones, argues the law society, are extremely private and should not be monitored by the regulator and agents or third parties involved in the installation and use of the DMS.
“It is therefore clear that DMS shall curtail the right to privacy of communications of nearly all mobile phone users in the nation,” the LSK says.
Article 19 supports the LSK’s position, stating from its intrusive nature, the DMS will be able to carry out surveillance on individuals using their mobile phones.
“If communications and locations are not private, the use of the DMS will automatically have a detrimentally chilling effect on the right to freedom of expression in the country,” the human rights body says.
Safaricom had raised concerns that the monitoring devices would give the regulator access to other customer data held by the telecoms operators.
The CA has defended the DMS arguing that the installation of the system was meant to fight counterfeits through creation of an Equipment Identification Register (EIR), which will detect all devices, isolate the illegal ones and deny fakes services.
The agency argues that the purveyors of counterfeit devices have become more high-tech and started cloning genuine IMEI numbers to the counterfeit devices which makes detection harder.
But Article 19 says counterfeiting is not a new crime and that the regulator and law enforcement agencies have been using other effective methods to handle it.
The CA in January 2017 wrote 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.
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.
