Kenyans have been spared the intrusive prying by the State after the High Court scuttled Communication Authority’s plan to spy on mobile phone conversations.
The regulator had wanted Safaricom, Airtel and Telkom Kenya to install a Data Management System (DMS) arguing it would help in detecting fake mobile devices.
After it switched off 1.5 million fake mobile phones in 2012, CA said that it needed an advanced system to completely eliminate the vice, but its acknowledgment that it wanted to access information raised eyebrows on the back of fears of State snooping.
On Thursday, High Court judge John Mativo rejected the plan saying he was convinced that installing the DMS was an infringement on mobile subscribers’ privacy.
He decreed that the authority was going overboard in its mandate as the country has an anti-counterfeit agency.
Mativo noted that mobile phone services companies are also able to detect and block black listed devices hence the system would be unnecessary.
“Accessing mobile telephone subscriber’s information in a manner other than that which is provided under the law infringes the right to privacy. It follows that for the DMS to be lawful, the reason given must not only be lawful but must meet the threshold of a reasonable, justifiable and democratic society,” said Justice Mativo.
A red flag was raised when in its letter dated January 31, 2017, the Francis Wangusi led CA stated that the purpose of DMS was meant to access information.
The three telecom firms opposed the plan saying it was a spy ware whose purpose was to eavesdrop on people's calls, read messages and also track their financial transactions.
The judge also faulted the authority for failing to consult the relevant bodies before deciding to have the system in place.
In the case filed by activist Okiya Omtatah, the judge heard that if CA intended to lock out counterfeits from the country, it ought to have started at the at the point of entry and not going after consumers have bought them.
Safaricom had been named as a party in the case and it told the court that the regulator disregard mobile phone operators’ concern that allowing third parties to access their systems would infringe their customers’ right to privacy.
“The decision to install the devices without consultation is arbitrary as the law does not grant CA powers to interfere with devices by tapping, listening to, surveillance or intercepting communications related date,” it argued.
Telkom lawyers told the court that they would not take any position but would be happy with either outcome of the case.
Airtel did not reply to the case.
The judge was told that there was no need for the device because the Government can manage to access information from the telcos through a court order.
CA had already awarded Broadband Communications Networks Ltd (BCNL) the Sh100 million tender to install and maintain the contested system.
The judgement now opens another battle front as the tender had already been signed and
Mr. Wangusi responded to the case saying that DMS was supposed to access IMEI numbers and the serial numbers of mobile phones which are to access a network but it would not get into people’s conversations.
He said that there was a need to have a central place to fight counterfeit mobile phones.
