Rising State surveillance casts long shadow over internet firms, users

In April 2023, the Supreme Court shot down an appeal by the Law Society of Kenya (LSK) seeking to stop the Communications Authority (CA) from installing a Device Management System (DMS). The legal dispute, dating back to 2017, also listed Safaricom, Airtel Kenya, Telkom Kenya, the Attorney General, ICT Cabinet Secretary, and activist turned senator, Okiya Omtata, as other respondents. LSK lost the appeal on a technicality. The Supreme Court argued that the association should have joined the case at the High Court and not the Supreme Court, and thus was not a proper party to the appeal. This cleared the way for the CA to install the DMS despite serious concerns over the lack of public participation and possible violations of subscribers' constitutional rights to privacy. In its submissions, for example, Safaricom said CA only communicated the specifications and design of the system developed by the Lebanese information technology firm Invigo Offshore Sal. "The fears by Safaricom were that a technical assessment was still required to be done prior to installation so as to pave the way for the legal, regulatory and consumer affairs committees to discuss the impact on the networks," said Safaricom in its court submissions in part. Safaricom further sought clarity and assurance by the CA that it would not have unfettered access to consumers' call data records, location information, credit card and M-Pesa information, identification information and SMS information. This, argued Safaricom, would make subscribers wary of using their devices, reversing the progress made in growing mobile adoption. The Supreme Court, however, downplayed fears by Safaricom, as well as other telcos and civic organisations challenging the DMS, paving the way for the government, through CA, to further entrench its digital surveillance capabilities. Today, the implications of the Supreme Court ruling are coming back to haunt Internet Service Providers (ISPs), telcos and their subscribers as the government moves to widen its scope of digital mass surveillance, amid growing dissent and public protests. In June, CIVICUS, a global alliance of civil society organisations and activists, downgraded Kenya's civic space rating from "obstructed" to "repressed," alongside countries like Ethiopia and Burkina Faso, which experienced a civil war and military coup, respectively. Citing cases of at least 60 protestors and bystanders killed by live police bullets, 82 cases of enforced disappearances, censorship of creative arts and state repression in online spaces, CIVICUS warned that the state is weaponising the Kenyan policing and intelligence system to violently suppress dissent. Mobile service providers, particularly Safaricom, which counts more than 50 million subscribers on its network, have in numerous cases found themselves on the defensive, with calls to boycott its services routinely trending on social media. In recent months, Safaricom has reiterated that it does not divulge the personal data of subscribers unless through a court-mandated process. "A lot of it is about perceptions," Safaricom CEO Peter Ndegwa said in a recent TV interview. "We do not give the location of customers, and we pride ourselves on providing services that are safe and secure. You cannot provide M-Pesa for 36 days a year, and it is always available if it is not secure and if it is not constructed in a safe way." Earlier this month, however, the DCI admitted that it skirted legal procedure in obtaining personal subscriber details of a university student charged under the Computer Misuse and Cybercrimes Act. The student was tracked to Eldoret through his mobile subscription data. In June, Albert Ojwang, a teacher and blogger, was picked up similarly from his home in Migori, but his case took a tragic turn when he died in police custody several hours later in Nairobi. Three police officers have since been charged with his murder. Despite guarantees to the right to privacy under Article 31 of the constitution and expanded in the Data Protection Act, 2019 to include personal digital data, security agencies appear to be ramping up their surveillance resources and efforts. Parliament's Budget and Appropriations Committee recently allocated an additional Sh150 million to the DCI for the procurement of Optimus 3.0, a system that can track social media users via GPS, for the National Police At the moment, amendments in the Kenya Information and Communications (Amendment) Bill, 2025 proposed by Aldai MP Marianne Kitany will require internet service providers to develop and deploy metered billing systems capable of monitoring customers' usage and issuing invoices based on their consumption. According to Mugambi Laibuta, an advocate and data privacy expert, the proposed amendments are an attempt by the government to circumvent the legal procedures laid out in obtaining subscribers' personal data. "The proposed amendments are a reaction to increased dissent and protests that have happened in digital spaces and, in my view, are meant to make tracking and tracing easier," said Laibuta. "The proposals seek to give ISPs a policing role which is not their core business, and the cost of compliance is likely to increase operational costs for ISPs." The International Commission of Jurists (ICJ) has also cautioned that the Bill, if passed, could open the door for wider mass surveillance, profiling and targeting while widening the country's digital divide. "Linking individuals to traceable meter numbers and tracking their internet use in real-time enables the government to monitor citizens' online activity," states the ICJ in a review of the proposed Bill. "With no clear data protection protocols, the collected data is at risk of unauthorised access, leaks, or commercial exploitation." According to the ICJ, the amendments are an overreach in regulation and have the potential of widening the digital divide and suppressing online voices. "High costs will reduce access to social media, educational content, e-governance services and economic opportunities," states the ICJ. "Fear of monitoring and retribution may lead to self-sensorship, weakening democratic discourse and human rights defenders and civil society groups that rely on digital platforms may face operational constraints."

Rising State surveillance casts long shadow over internet firms, users

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