Strik­ing bal­ance be­tween pri­vacy and se­cu­rity

Nairobi Law Monthly - - Briefing - 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 Di­rec­tor­gen­eral 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

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