Outrage greets Bill on mandatory disclosure of SMS, WhatsApp texts

Kenyans have sharply criticised a proposed law that obligates them to disclose to the government SMSs, emails and WhatsApp messages that are likely to breach national security.

The new bill, which seeks to amend the Official Secrets Act of 1968, seeks to compel mobile phone or communication gadget users to furnish the state with information on persons and data being pursued for national security reasons.

The Statute Law (Miscellaneous Amendments) Bill 2020 states that, "any person who owns or controls any telecommunications apparatus used for the sending or receipt of any data to or from any place outside Kenya, to produce to the Cabinet Secretary or any person named in the order, the original or transcripts of all such data."

The state, however, sees the disclosures as part of civic duty in its efforts to fight crimes as money laundering, terrorism and cybercrime.

Under the proposed law, failure to provide records and details of persons of interest to the security agencies makes one liable to a Sh1 million fine or a jail term of up to one year.

Speaking to the Nation, former Chief Justice Willy Mutunga described the bill as an attempt to consolidate the leadership of the ruling party and the opposition.

“We can point out many provisions in the Constitution that it would violate. I am sure the legislation will be struck down by the High Court in due course,” Dr Mutunga said, adding that the Official Secrets Act of 1968 is a colonial statute with a background that runs counter to the people’s struggles, including Mau Mau.

“In 1968, the Jomo-Kanu dictatorship was facing fierce opposition from the Kenya People’s Union (KPU), which it banned the following year. The Act is about keeping the bureaucracy loyal to the government,” the retired president of the Supreme Court of Kenya explained.

Right to expression

He further said that anyone who wants to understand what national security means can refer to article 238(1) and (2).

“They can also access the parliamentary Hansard of the Act,” Dr Mutunga said.

Human Rights Activist Okiya Omtatah told the Nation that the bill of rights, right to expression and obligation to disclose is a grey area that cannot be legislated casually.

“I doubt that law can stand. If they pass it, chances are that the court will shoot it down,” said the activist.

Ms Waithira Wanjiru alias Nyarari ya Mumbi, an independent journalist and economic rights activist, asked the state to desist from formulating laws that violate the right to privacy.

“Freedom of expression is not a bargain and the right to privacy is not a favour,” said Ms Wanjiru, who is also the convener of the Red Vests Movement.

Kenyans in the diaspora have expressed similar sentiments.

“Kenyans in Europe are protected by the general data protection regulation (GDPR) and so no organisation can leak their private data,” an ex-Google employee who sought anonymity told the Nation.

“The big question is how they will find out details of WhatsApp messages, because no one will provide them that data,” she added.

Mr Alois Kiogora, a tech enthusiast, described the proposed law as a move against WhatsApp’s end-to-end encryption because, as things stand, the state only sees gibberish when mining data.

The move comes after authorities installed traffic analysers at the various telecom operators that give them access to voice, SMS and partial unencrypted data.

Mr Dennis Nkarichia, a litigation and dispute resolution associate with Mohammed Muigai Advocates, a law firm based in Nairobi, describes the proposed law as a thin end of the wedge on a constitutionally protected right to privacy and the right to association.

“The intentions appear to be an attempt to institutionalise state surveillance under the threat of crippling sanctions.”

Mr Nkarichia believes the framing of the Bill will impose undue and unconstitutional burden on the public.

National security

Independent analyst Mihr Thakar concurred with Dr Mutunga that the term ‘national security’ will be subject to judicial interpretation to guard against misusing it to target government critics.

“Similar laws are already applicable in many countries in regard to money laundering and tax evasion but there is always a thin line between criticism of the government and national security,” he said.

Last month, WhatsApp announced a new disappearing messages option. The feature, which is currently on trial in countries like India, will allow chat conversations and messages to be deleted automatically after seven days.

Anyone can enable the option in individual chats and group admins will be able to enable disappearing messages in group chats.

“We’re starting with seven days because we think it offers peace of mind that conversations aren’t permanent, while remaining practical so you don’t forget what you were chatting about,” WhatsApp said in an official announcement.

The new feature will also wipe out photos and videos after seven days.

However, while messages will disappear for both parties, it is still possible to take screenshots or copy messages before they are automatically deleted.