Striking balance between privacy and security


Antony Mutunga

The world has its eyes and ears on US, whose Federal Bureau of Investigations (FBI) is battling it out with one of the biggest technology companies, Apple, where the formers wants the latter compelled to write special software that would override some security features on apple products. Now what makes the world watch this particular case in suspense is because it exposes the problems brought about by the clash between security and privacy.

In this particular case, the FBI wants Apple to unlock and open the iPhone of one of the people involved in the terror attack that occurred in San Bernardino, with security as their backdrop. Apple in its defence, says it cannot do as the government demands due to the fact that if the phone was to be unlocked, then it will make it easier for cyber terrorists to create backdoors to the iPhone systems, and thus put at risk people’s privacy.

American author Catherine Neville said, “Privacy is like eating and breathing; it is one of life’s basic requirements.” She understood just how basic privacy is, especially in this digital era. Although, when it is really important is when it’s most vulnerable especially when security gets involved. Security is important but governments world over have caused more harm than good in this sector as they have pitted the two against each other.

Kenya is also home to some problems when it comes to security and privacy; the two rights are not clearly understood by Kenyans and thus it makes them easy prey to having their privacy rights easily infringed upon. When the government amended the Securities Act in 2014, it created an even bigger problem between the laws on privacy and security.

In Kenya the right of privacy in connection to someone’s home or property, information relating to family, their privacy affairs and communications is protected under Article 31 of the Constitution. It is true that the right to privacy is limited in accordance to some circumstances, but some of the Kenyan authorities seem to not understand this particular article of the constitution as security personnel regularly conduct illegal searches and forced entries into property in the name of security.

The Security Laws (Amendment) Act 2014 made it possible for the National intelligence service (NIS) to be able to intercept the private communications of someone who is subject to investigation.  This was made legal under the Security Laws (Amendment) Act 2014, section 55, which in sense makes the intelligence service the determiner on which surveillance to use and whose communication to intercept.

After the amendment, the people of Kenya started to slowly lose their privacy rights as the law limited privileges the people had in terms of privacy on their communications. The act also extended the persons who can be investigated by the intelligence service giving the agents from the service mandate to do it without giving any details.

Even more worrying, the Director-General has the power to introduce covert operations and give officers of the service powers to be able to enter, search, record and even to some extent extract things from the premises of someone subject to investigation if the national security is in any threat. This was all made legal under section 56 of the Security Laws (Amendment) Act, 2014.

The intelligence service agents are required to have written authorisation from the Director general alongside a warrant from the High court where entering, searching, recording and extracting are concerned. But security offices still seem to carry out these duties without the warrant but due to the fact that most people are not aware of their privacy rights they end up having them infringed.

On the other hand, Section 15 of the Kenya Information and Communications (Consumer Protection) Regulations, 2010 states that a licensee “shall not monitor, disclose or allow any person to monitor or disclose, the content of any information of any subscriber transmitted through the licensed systems by listening, tapping, storage, or other kinds of interception or surveillance of communications and related data.”

Although in 2014, our country adopted Kenya Information and Communications (Registration of Subscribers of Telecommunication Services) Regulations, 2014 which gave the regulators access to ones confidential information as the law under section 13 stated that “a licensee shall grant the commission’s officers access to its systems, premises, facilities, files, records and other data to enable the commission inspect such systems, premises, facilities, files, records and other data for compliance with the Act.”

Another breach, in the name of “war on terror”, that will shock most Kenyans, is the fact that the US National Security Agency (NSA) intercepts the communications of Kenyans through a program known as the MYSTIC program. The program is clearly an infringement on the rights of privacy of the Kenyan people as it collects data in form of metadata and stores the content for future use.

Metadata usually describes other data. It provides information about a certain item’s content. For example, an image may include metadata that describes how large the picture is, the colour depth, the image resolution, when the image was created, and other data. With this, the NSA is able to have information on when a certain content was created, sent and received as well as who sent it together with who it was sent to.

Not only are the rights of Kenyans being infringed upon inside Kenya but they are as wellbeing breached by foreign agencies which is a clear indicator on how much we need to be aware and protective of our constitutional rights. As Edward Snowden, a former N.S.A and central intelligence agency (C.I.A) said, “Your rights matter, because you never know when you’re going to need them.”

The state seems keen on maintaining security, which is good although it ends up limiting privacy in the meantime. The mentality needs to change from security vs. privacy to security and privacy working hand in hand to create a world whereby people keep their privacy and feel secure at the same time. This is the ultimate combination that works towards a better tomorrow.


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