Key ruling on mobile records next battlefront on privacy laws

A landmark judgement by the US Supreme Court restricting government access to mobile phone location information to spy on the movement of users will embolden the fight against State intrusion into individuals’ privacy in Kenya.

By a 5-4 decision, the Supreme Court held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through cell-site location information (CSLI)”, a ruling legal experts say can be used as precedent authority in Kenya.

The judges said mapping a cell phone’s location over long periods – wireless carriers in US currently maintain records for up to five years – provides an all-encompassing record of the holder’s whereabouts, including intimate sojourns.

“As with GPS information, the time­stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, reli­gious, and sexual associations,” the judges ruled last Friday.

The judges noted that historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle because a cell phone, almost a “feature of human anatomy,” tracks nearly exactly the movements of its owner.

“While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thor­oughfares and into private residences, doctor’s offices, political headquarters and other potentially revealing locales,” they observed.

The judgement comes against the backdrop of a court battle pitting proponents of civil liberties against the State over its plan to pry into private mobile phone conversations.

Right to privacy

The Communication Authority of Kenya (CA) has appealed against a High Court ruling that installation of a data management system (DMS) to tap into subscribers’ phones is against individuals’ right to privacy.

There have been instances in which mobile phone location data has been used in Kenyan cases, like in the tribunal investigation against retired Supreme Court judge Phillip Tunoi and the vetting of judges by the Sharad Rao-led commission.

Lawyer Abdikadir Mohammed, a former State House senior adviser for constitutional and legal affairs, said the US judgement “can still be used as precedent authority here".

During the vetting of judges and magistrates, the team was questioned on mobile phone data from mobile subscribers.

In 2016, a team led by Rao to probe retired Justice Tunoi was again faced with mobile phone technology use.

The retired judge's case hinged on who was where at what time, relying on data collected from masts placed by telcos across the country.

Last year, allegations that judges had communicated with parties rocked the presidential election petition allegedly based on mobile phone records obtained from mobile phone services providers.

In all instances, there were no warrants from a judge or a magistrate to establish who spoke to whom, at what time and from where.

The US case involved the government’s acquisi­tion of wireless carrier cell-site records revealing the location of a robbery suspect’s cell phone whenever it made or received calls.

The judges equated the acquisition of such information to a search, hence the government must generally obtain a warrant supported by probable cause before acquiring such records.

“We decline to grant the State unrestricted access to a wireless carrier’s database of physical location infor­mation. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protec­tion. The government’s acquisition of the cell-site records here was a search under that amendment. The judgement of the Court of Appeal is reversed, and the case is remanded for further proceedings consistent with this opinion,” the judges ruled.

Noting that nearly three-quarters of smart phone users reported being within five feet of their phones most of the time, with 12 per cent admit­ting that they even use their phones in the shower, the judges said allowing government unfettered access to such information would violate privacy.

“When the government tracks the location of a cell phone, it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user,” the judgement read.

The legal battle on tracking mobile phone location data was a result of a string of armed robberies at Radio Shack and T-Mobile stores in Michigan and Ohio.

In 2011, a robber confessed to the crimes, gave the Federal Bureau Investigations his own cellphone number and the numbers of other participants in the robbery scheme.

The FBI obtained cell-site records placing the accused persons – Timothy Carpenter and Timothy Sanders – near each of the robberies out of 127 data records obtained from a mobile phone firm.

Carpenter was jailed for 100 years based on the digital evidence placed before the trial court.

The judges held that whether the government employs its own surveillance technology or leverages the technology of a wireless carrier, an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.

“Allowing government access to cell-site records contra­venes that expectation (not to secretly moni­tor and catalogue every single movement of an individual’s car for a very long period).”

Lawyer John Chigiti observed that enforcing privacy rights in the digital age had become a global conversation.

He noted that in Kenya, there were two cases on the issue of digital privacy, adding that there must be a balance between the State securing citizens and at the same time respecting their space to privacy.

The constitutional and human rights lawyer added that Article 24 of the Constitution, which allows the Government limited snooping on citizens, was not a blank cheque for it to encroach on their private lives. This article also makes it a must for the Government to seek warrants.

“Privacy remains privacy. However, Article 24 which limits that privacy is not absolute. There must be a sound reason to meet that requirement and it’s upon the person who is seeking to access information to establish that there is justification,” said Mr Chigiti.

He added: “If we look at the emerging trend, like what is happening in the US, there might be a need to re-engineer, re-look at the position that we have around the space to access third party information. We also must ask ourselves what is the harm. There must be some harm that comes in terms of liberating the space and so where is the balance? And that is where the role of the judge comes in.”

Lawyer Chigiti also said the right to privacy, as provided under Article 31 of the Constitution, was to ensure that the Government did not oppress people either voicing dissent or putting on checks and balances.

“It the global conversation that is happening now that needs a lot of conversation from a human rights perspective,” he said.

Lawyer Nelson Havi said that although it is theoretically moral for the Government to snoop into conversations and track phones to prevent crime, the same law is used to infringe on the right to privacy.

He said that the National Intelligence Service does not need a law to listen and even enter into a person’s digital space to ensure national security but observed that there was a need to regulate this.

“Ideally, the law is that communication on cell phones is private so that when the police are investigating, they are supposed to get a warrant. There is a police station within Safaricom headquarters and that has always been the problem so that by the time they come to court to get a warrant, they already have the information,” he said.

He noted that the judges who were affected by their mobile phones being tracked should have sued.

Lawyer Okweh Achiando said Kenya had not grown her law on mobile phone location tracking. He, however, noted that evidence obtained illegally cannot and should not be used in a court of law.

“This is a case of its own kind. With the type of law we have here, we have not yet developed that kind of jurisdiction. Article 50 (2) dictates that evidence obtained if warrants were not issued cannot be used in a court of law. Privacy is a fundamental right and if you have to infringe it, you must show the limitation under Article 24,” said Mr Achiando.

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