What you need to know:
- Plans to instal spy ware begin as regulator rolls out email traffic monitoring system
The telecommunications industry regulator is setting up a system to spy on private electronic mails, citing a rise in cyber security threats.
Plans to install the spy ware began on Monday after the Communications Commission of Kenya (CCK) wrote to service providers demanding their cooperation in the installation of Internet traffic monitoring equipment known as the Network Early Warning System (News).
CCK said in the letter that the system will monitor incoming and outgoing traffic on Kenyan networks to detect and speed up response to possible cyber threats.
“The News tool will need to interface with your systems, mainly to access data that goes through your network, and we will therefore require your assistance on this,” the letter said.
The system, which acting CCK director-general Francis Wangusi said will be operational by July, has already run into opposition from Internet Service Providers (ISPs) who say it is in breach of the Constitution.
Article 31 of Constitution grants citizens the right to privacy, including a clause preventing infringement on “the privacy of their communication.”
CCK is banking on the Kenya Information and Communications Act, which gives it power to develop a national cyber security management framework as the legal basis for its latest action.
Kenya has in the past year had at least 2,000 local web sites hacked or defaced, including government portals.
Mr Wangusi insisted that the system will only target potential cyber threats but critics said it was possible for government spies to infiltrate it and use the information for political or extra-legal purposes.
“To ensure transparency and confidentiality in this sensitive and vital process, we plan to sign a non-disclosure agreement stipulating that information gathered will only be used to facilitate response to cyber incidents and will only be shared among concerned parties,” he said.
But lawyer Paul Muite said that any spying on people’s mails that is not backed by a specific court order will be in violation of Articles 31 and 34 of the Constitution.
“I am sure the CCK has lawyers who clearly understand that all laws are subject to the Constitution and that any law such as the Kenya Information and Communication Act that contradicts the Constitution is null and void to the extent of that contradiction,” Mr Muite said.
“This is unwarranted interference with the citizens’ right to freely communicate which is highly irregular, as it amounts to spying on people without having to account for their actions,” he said.
Mr Muite said that if the CCK wants to crack down on operators whose networks are being used in a manner that compromises national security then the legal way to do so would be to seek a court order that gives it access to the network monitor to analyse the content.
A section of telecommunications operators also opposes the deployment of the monitoring tool, saying it risks exposing them to an avalanche of legal suits. “We don’t understand how such a system would work without infringing on the privacy of our clients as guaranteed in the Constitution,” said an operator who cannot be named opposing the regulator.
This story was first published on Wednesday in Business Daily, our sister publication