The High Court of Kenya has dealt a blow to plans by the Communication Authority (CA) and the government to tap private phone conversations.
In a decision delivered last week Thursday, Justice John Mativo said the plan, which was to be rolled out in February last year, seeking to integrate Device Management System (DMS) of three leading mobile telephone companies and give the Communications Authority (CA) access to the information, is a breach of rights to privacy and consumer rights.
CA Director-General Francis Wangusi had argued that proliferation of illegal devices had forced them to snoop on private phone calls in a bid to arrest cybercrime. CA had written to Safaricom, Airtel and Telkom Kenya, the three major telcos in Kenya, over the plan. CA and the government wanted the three companies and broadband communications networks to tap computers on their behalf by planting spy gadgets on all networks. The devices had the capacity access all information stored by service providers and transacted on phone.
According to Justice Mativo, CA was obligated to draft and implement a meaningful programme of public participation and stakeholder engagement in the process leading to the decision. The judge prohibited CA from implementing the decision or installing any connectivity between the DMS and the mobile companies to access information on the IMEI, IMSI, MSISDN and CDRs of subscribers.
Consumer Federation of Kenya (Cofek) Secretary-General Stephen Mutoro welcomed the decision saying it is precedent-setting and asked the government to discard the plan and find a better way of dealing with counterfeit devices. Mr Mutoro said the court has asserted the right to privacy, adding that the system is prone to abuse.
CA was asked why they sought to install the system to nab counterfeits yet there were agencies such as the police, Anti-Counterfeit Agency and Kenya Bureau of Standards as well as Kenya Revenue Authority (KRA) that monitor standards. KRA has made previous attempts to access M-Pesa transaction records to catch tax cheats, a move Safaricom opposed citing the need for proper legal backing.
It said the system will benefit Kenya’s economy by blocking use of illegal mobile devices, minimising theft of mobile phones, blocking use of counterfeit mobile devices, stopping sim-boxing and cutting revenue leakages from mobile operators.