The communications regulator has renewed push to install a device on mobile phone networks to detect counterfeits, 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 lift orders that blocked the rollout of device management systems (DMS) in 2018.
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Regulator denies DMS has ability to access subscribers’ phone records, location and mobile money transaction details, insisting technology can only detect and record ID number unique mobile phones and assigned subscriber numbers.
Safaricom had raised concerns that the monitoring devices would give the regulator access to other customer data held by telecom operators.
Busia Senator Okiya Omtatah won the orders blocking the installation of the DMS, arguing it would allow the regulator to spy on private conversations and access sensitive customer data.
In the appeal, the CA stated that it had no intention of spying 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 the privacy of customers. consumers.
“In this regard, we do not contend that the DMS device does not, and is not intended to, infringe subscribers’ right to privacy, and that there is no proven less restrictive means of combating the illegal devices,” said Wambua Kilonzo, the attorney for the CA, said.
The lawyer said the High Court was wrong in its decision because the DMS does not have the capacity to invade the privacy of subscribers.
“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 pleaded 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 assurance that it would not be used. by third parties to access private information.
In January 2017, the CA had written to Safaricom, Airtel and Orange (Telkom) demanding that a contractor it had hired be allowed into operator sites to install the spy device, triggering a public outcry.
The telecommunications market regulator had defended the move on the grounds that it would help weed out counterfeit phones from the local market.
Mr Omtatah questioned the intent of the AC, 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 has been resolved. The High Court concluded that the CA did not have a mandate to combat the use of counterfeit products in the Kenyan market, noting that the law assigned that role to the Anti-Counterfeiting Agency.
Counterfeit phones, imported mainly from Asia, are prevalent in many African countries and regulators say they are widely used by criminals because they are difficult to track.
The CA has already disabled counterfeit cell 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 has a mandate to monitor compliance with the Kenya Information and Communications Act (KICA) and that the DMS was not a new policy, but only intended to control the proliferation of illegal devices.
The authority further claims that the case was based on hypothetical situations and that Mr. Omtatah did not provide any evidence to support the existence or the possibility of violation of anyone’s fundamental rights.
Mr Kilonzo further said that unknown technical experts were relied upon and that the espionage allegations were general and vague as the allegations were based on newspaper clippings and no other evidence.
“It is now an accepted principle of law that a court is not supposed to engage in abstract arguments. The court is prevented from ruling on a matter when it is too early or simply out of apprehension, hence the principle of maturity,” argued the lawyer.
The regulator said the tribunal ignored its arguments on Kenya’s obligation under the International Telecommunications Union (ITU) Convention to curb the proliferation of counterfeit telecommunications devices, 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 different aspects since then, the AC argued.
The regulator said the implementation of the DMS is still at the stage of formulating parameters and forming committees.
“Implementation was to be done in phases to ensure sufficient time to educate and seek public compliance, had not yet begun contrary to the court’s finding,” Mr Kilonzo said.