Technology, Media and Telecommunications – Kenya

Our Partner, Brian Tororei, contributed the Kenya Chapter in The Technology, Media and Telecommunications Review – Edition 8. The fully updated edition provides an overview of evolving legal constructs in 26 jurisdictions around the world. It is intended as a business-focused framework for both start-ups and established companies as well as an overview for those interested in examining evolving law and policy in the rapidly changing Technology, Media and Telecommunications sector.

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The Chapter on Kenya takes an eagle view on the developments within the Technology, Media and Telecommunications Sector in Kenya from the laying down of the Kenya ICT Master Plan 2017 in 2013, the landing of various submarines cables, the launch of the National Optic Fibre Backbone infrastructure (NOFBI), the digital migration in 2015 and takes an telescopic view into the future of Blockchain Technology, Internet of Things, Geospatial Information Systems and the deployment of 4G among others.

It gives a brief overview of the Technology, Media and Telecommunications Sector in Kenya followed by broad discussions on Technology, Media and Telecommunications Sector Legal and Regulatory Framework; Telecommunications and Internet Access; Spectrum Policy; Media; The Year in Review and the Conclusions and Outlook.

Detailed discussions touch on issues such as the regulators in Kenya’s Technology, Media and Telecommunications Sector, the Regulated Activities; Ownership and market access restrictions; Transfers of control and assignments; Internet and internet protocol regulation; Universal service; Restrictions on the provision of service; Security; Spectrum Policy Development; Flexible spectrum use; Broadband and next-generation mobile spectrum use; Spectrum auctions and fee; Restrictions on the provision of services in Kenya’s Media Industry; and Internet-delivered video content.

Under the 2017 Year in Review, the Chapter highlights a number of developments in the Technology, Media and Telecommunications Sector including the cabinet approval of the Computers and Cybercrime Bill, 2017; and the approval of the Draft Wireless Broadband Spectrum Policy, 2017.

The Chapter also gives a brief review of the Republic v. Communications Authority of Kenya ex-parte Geonet Communications Limited & 5 others, High Court of Kenya at Nairobi, JR Miscellaneous Civil Application No. 358 of 2015, [2016] eKLR (G V Odunga J, 19 September 2016) where GeoNet Communications Limited indicts Kenya’s three major and other MNOs for violating the interconnection regulations.

The Chapter concludes with a positive high noting that Kenya is moving rapidly towards its target of being Africa’s ICT hub notably with the landing of various submarine cables and the deployment of NOFBI.

NOFBI Map

The Chapter appreciates that increased internet penetration and access is likely to be experienced with continued deployment of the NOFBI by private telecoms through the last-mile connections and their respective fibre network.

The Chapter looks out for increased deployment of 4G and enhanced use experience, the passing of the Computers and Cybercrime Bill, 2017 into law as a major boost to cybersecurity, increased interest and investment in internet of things (IoT) by both government and private players in the ICT sector.

The Chapter forecasts the adoption of IoT for the deployment of an asset data hub providing for, inter alia, asset unique identifiers, a transport information management system and smart ID cards for livestock and the adoption of Blockchain Technology in the banking and financial services sector, the health sector, the insurance sector, the stock trading sector and the land sector.

Read the Chapter


At TLO Law Associates, we care about Technology, Media and Telecommunications.

Our legal representation, advisory and consultancy services spans through, Technology, Data Privacy and Protection, Cyber Security, Media and Telecommunications among others. For legal assistance, or more information on our services, kindly contact us.


Note & Disclaimer:

The information included in this article was correct at the time it was written and uploaded to this website.

This publication is not intended to constitute legal advice which can only be given having regard to particular facts and circumstances. Any liability, damage, loss or injury that would or could arise from or of the contents hereof, directly or indirectly is hereby excluded.

Always seek professional advice from a suitably qualified lawyer on any specific legal problem or matter.

We are here to serve you. To initiate the process for specialised legal assistance, kindly contact us.

PLEASE NOTE HOWEVER that contacting us DOES NOT in itself create a relationship between us and you.


 

US Supreme Court gives Privacy New Breath

The US Supreme Court rules in Carpenter v United States, 16-402,  that the federal government generally needs a warrant to access historical cell phone location records, finding that the data deserves more stringent protection than other customer information held by service providers.

The Petitioner, Timothy Ivory Carpenter was charged in 2011 with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence. However, there was no direct evidence linking him to the robberies.

Based on the information the FBI had extracted from other suspects potentially linking Carpenter to the robberies, the prosecutors applied for court orders under the Stored Communications Act to obtain Carpenter’s and several other suspects’ cell phone records.

Subsequently, the Government obtained Carpenter’s cell-site location information (CSLI). These are time-stamped records that a phone generates each time it connects to a cell site, without any affirmative act on the user’s part beyond powering.

[Image Credit: https://www.aclu.org]

From the CSLI records, 12,898 location points cataloguing Carpenter’s movements over 127 days—an average of 101 data points per day were obtained.

Carpenter’s move before the District Court to suppress the data, arguing Government’s violation of the Fourth Amend­ment, prohibiting seizure of the records without obtaining a warrant supported by probable cause, was denied.

The prosecutors relying Carpenter’s CSLI records and the on circumstantial evidence derived therefrom, showed the Trial Court that Carpenter’s phone was near four of the robbery locations at the time those robberies occurred thus securing a conviction.

The Federal Court of Appeal for the Sixth Circuit affirmed the Trial Courts conviction, holding that Carpen­ter lacked a reasonable expectation of privacy in the location infor­mation collected by the FBI because he had shared that information with his wireless carriers.

The 5-4 US Supreme Court Opinion reverses the Court of Appeal decision finding that historical cell phone location records deserve heightened protection under the Fourth Amendment. The Court stated that “individuals have a reasonable expectation of privacy in the whole of their physical movements.”

The Court addressed itself to the application of the Fourth Amendment to the digital age ability to chronicle a person’s past movements through the record of his cell phone signals vis-à-vis the government’s right to seize and search.

While stating that historical cell-site records present even greater privacy concerns than the GPS monitoring since they give the Government near perfect surveillance allowing it to travel back in time to retrace a person’s whereabouts, the Court found it ironic for Government to contend on the one hand that CSLI data is less precise than GPS information, while having relied on and highlighting the data’s accuracy during its closing argument in Car­penter’s trial.

The Court also took judicial notice of technological advancement in the field of surveillance and telecommunication stating that:

“At any rate, the rule the Court adopts ‘must take ac­count of more sophisticated systems that are already in use or in development,’ and the accuracy of CSLI is rapidly approaching GPS-level precision.”

The Court also stated that:

“Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the time­-stamped 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.’”

Mapping of CSLI in a similar case: People v. Moalawi [Image Credits: https://www.eff.org]

The US Supreme Court decision is an insightful contribution to jurisprudence. It highlights the conflict between analogue and digital and the need to contextualise precedents while also addressing the place of circumstantial evidence in the digital era and in sharp conflict with the fundamental right of privacy.

Read related stories here, here, here and here.

At TLO Law Associates, we care about Technology, Privacy and Telecommunication.

Our legal representation, advisory and consultancy services spans through, Technology, Data Privacy and Protection, Dispute Resolution and Telecommunication among others. For legal assistance, or more information on our services, kindly contact us.

Note & Disclaimer:

The information included in this article was correct at the time it was written and uploaded to this website.

This publication is not intended to constitute legal advice which can only be given having regard to particular facts and circumstances. Any liability, damage, loss or injury that would or could arise from or of the contents hereof, directly or indirectly is hereby excluded.

Always seek professional advice from a suitably qualified lawyer on any specific legal problem or matter.

We are here to serve you. To initiate the process for specialised legal assistance, kindly contact us.

PLEASE NOTE HOWEVER that contacting us DOES NOT in itself create a relationship between us and you.

Africa’s Largest Cyber Defence Yet

Plans are underway for Africa’s largest Cyber Defence Summit. The cyber security gathering dubbed Cyfence Africa is scheduled for 9-10 July 2018 at the Kenyatta International Convention Centre (KICC), Nairobi, Kenya.

The Government of Kenya through the Ministry of ICT is the Summit’s official host. The Dubai-based business facilitation company, Naseba and the Kenya-based Africa Cyber Space Network – a premier international cyber protection Network that is at the forefront in Africa’s Cyber Security protection initiative are the Summit’s official co-organisers.

The Summit is organised on the appreciation that Technology is becoming a key economic enabler for African nations and with the acknowledgement that it is imperative to address the challenges of cyber security through a collaborative cyber defence and to protect our critical infrastructures.

Read related stories here and here.

The rather ambitious Summit seeks to, among others: Promote cyber security leadership and governance from the top level of every organization; Identify gaps and build capacity for strategic, technical and operational elements of cyber security; Address cyber security holistically by enhancing collaboration between African nations and across industry verticals; Facilitate partnerships that develops local industry and contextualize cutting edge cyber security solutions and services; and Initiate a dialogue towards the setting up of regional cyber security action frameworks.

Click here for more information on the summit.

At TLO Law Associates, we care about Technology and Cyber Security. Our legal representation, advisory and consultancy services spans through, Technology, Data Privacy and Protection, Cyber Security and Telecommunication among others. For legal assistance, or more information on our services, kindly contact us.

Note & Disclaimer:

The information included in this article was correct at the time it was written and uploaded to this website.

This publication is not intended to constitute legal advice which can only be given having regard to particular facts and circumstances. Any liability, damage, loss or injury that would or could arise from or of the contents hereof, directly or indirectly is hereby excluded.

Always seek professional advice from a suitably qualified lawyer on any specific legal problem or matter.

We are here to serve you. To initiate the process for specialised legal assistance, kindly contact us.

PLEASE NOTE HOWEVER that contacting us DOES NOT in itself create a relationship between us and you.

Cryptocurrencies finally grab IMF’s attention?

The International Monetary Fund (IMF) has reaffirmed its interest in cryptocurrencies through a report Monetary Policy in the Digital Age which concludes, interestingly, that: “Crypto assets may one day reduce demand for central bank money.”

The report which centres on virtual currencies examines the evolution of money analysing the pros and cons of crypto assets the dangers they pose on the functionality and relevance of central banks and proposes solutions thereto.
The IMF report argues that the global financial crisis and the bailouts of major financial institutions renewed skepticism on the central banks’ monopoly on the issuance of currency consequently leading to the mushrooming of Bitcoin and other crypto assets.

Read a brief analysis of the IMF Report by Brian Tororei here.

These assets, the IMF argues, may one day serve as alternative currencies thus reducing demand for fiat currencies on the account that they offer anonymity of cash, allow transactions at long distance and the unit of transaction can potentially be more divisible thus proving more attractive for micro payments in the sharing and service-based digital economy.

The IMF correctly points out that there are hurdles that crypto assets need to clear before they achieve their full potential including their present high volatility and risk and the fact that they enjoy less trust than fiat currencies.

The IMF also argues that the central banks could counter the pressure that cryptocurrencies may exert on fiat currencies through a raft of measures including but not limited to making their fiat currencies better and more stable units of account and being open to fresh ideas and new demands, as economies evolve; enhancing regulation of crypto assets to prevent regulatory arbitrage and any unfair competitive advantage on account of lighter regulation; and making their money attractive for use as a settlement vehicle.

Read more here.

KT Law Associates is a specialist firm dealing with Technology Media and Telecommunication. Kindly contact us for legal advice and questions on Blockchain Technology among other areas.

Airtel 4G, the New Kid in the Block!

Airtel Kenya finally operationalises its 4G licence. Following its launch of the 4G (Forth Generation) services, which are presently limited to Mombasa and Nairobi, before other roll outs countrywide, Airtel becomes the fourth entrant in the Kenya 4G market.

Airtel Kenya Managing Director Prasanta Das Sarma speaking during the launch of 4G network in Nairobi on 2 May 2018.

Airtel’s 4G service runs on a 10MHz block of the 800MHz frequency spectrum which also accommodates Safaricom’s and Telcom’s 10MHz respective blocks. The 4G licences which are pegged to the allotted frequency spectrum were first issued to the three telcos on trial basis but to be operationalised upon payment of the Kenya Shillings Twenty Five Million (Kshs. 25,000,000.00/=) only.

Jamii Telecommunications, a tier 2 telecommunications company launched its 4G services in December 2017. Its 4G services run on the coveted 700MHz frequency spectrum which became available following Kenya’s successful digital migration in 2015.

To incentivise its customers, Airtel offers free 2GB of Data to its customers upon successful upgrades to 4G SIM cards.

Airtel noted during the launch that it is committed to continuously innovate and improve the quality of its products and services for a delightful customer experience. While Airtel’s launch, appears late in time, it is indeed timely as it rides on the goodwill already generated by the other players regarding 4G.

It would be interesting to see how the now four major players in the Kenya 4G market will structure their products and services as in order to meet the growing need for internet access in Kenya.

Read more here, here and here.

At KT Law Associates, we offer legal services on, Technology, Media and Telecommunication, Competition Law and Consumer Protection among other areas law. For more information on the Kenya’s TMT Sector and other legal assistance, kindly contact us.

Blockchain finds one of its Use Case in Kenya

The collaboration between IBM Research and Twiga Foods has seen the launch of a business-to-business logistics platform for kiosks and food stalls in Africa.

The platform, a blockchain-based system has since seen 220 food stall retailers across Kenya benefit from microloans through an eight (8) week pilot phase that not only benefited the retailers but also the platform as it provided feedback for necessary iteration.

Read more at: IBM and Twiga Foods Introduce Blockchain-Based MicroFinancing for Food Kiosk Owners in Kenya

The platform is a financial inclusion service targeting the Small and Medium-Sized Enterprises (SMEs) which often have difficulties accessing financing given that most SMEs are characterised by lack of collateral to be used as security.

The platform is mobile based and employs machine learning capabilities to assess the applicants’ credit worthiness thus boosting lender confidence, the absence of which has also contributed to the would-be-extinct financial exclusion of SMEs.

Given the success of the pilot, the platform is likely to see further and wider deployments across Africa in the coming months.

Related Story: Kenya’s food kiosk owners embrace blockchain-based microfinancing

At KT Law Associates, we care about SMEs growth and revolution and are keen to see how technology can fast track such growth while ensuring that privacy and data protection are at the fore.

Our legal representation, advisory and consultancy services spans to SMEs, Corporate and Commercial, Technology among others. For legal assistance, or more information on how what we have on offer, kindly contact us.

Disclaimer:

This information is meant for general consumption and informational purposes. It does not and is not meant to form any legal advice. Reliance on the information as legal advice shall be at your own risk and we shall not be liable to any loss, damage or injury, suffered directly or indirectly as a result of any such misinformed reliance.

Should you however desire to receive legal assistance from us, kindly contact us to initiate the process. PLEASE NOTE HOWEVER that contacting us does not in itself create a relationship between us and you.

The Never Ending Oracle v Google Case

Oracle and Google have been on each other’s necks for almost eight years now. A legal battle ensued in 2010 which has seen both Oracle and Google exchange victory and loss as the matter has bounced up and down through appeals and two whole jury trials, the latest being a victory for Oracle before the US Court of Appeal for the Federal Circuit.

The matter goes for its third trial before the California District Court, for the determination of damages due to Oracle following the Federal Circuit’s finding that Google’s use of Oracle’s Application Programming Interfaces (APIs) did not amount to fair use under the US Copyright Act.

Oracle first sued Google in 2010 after it purchased Sun Microsystems which initially owned the Java APIs. Oracle’s argument was that Google’s Android OS based on customised Java APIs amounted to copyright infringement.

Read: Federal Circuit sends Oracle v. Google back for third trial

The case went to full trial in 2012 with Oracle losing following the determination of the California Northern District Court (Judge William Alsup) that APIs are not subject to copyright. The ruling, an important news item to entrepreneurs and software developers, favoured innovation and interoperability allowing software to use APIs without paying a licence fee.

Oracle being displeased with Judge Alsup’s decision appealed to the Federal Court. In 2014, the Federal Court found in favour of Oracle holding that APIs are copyrightable but without answering the question of fair use.

Google unsuccessfully petitioned the Supreme Court to review the Federal Circuit’s decision. The Supreme Court’s dismissal of Google’s Petition in June 2015 allowed for the matter to go back to the trial court for determination of the fair use defence.

The jury in the second trial court unanimously agreed in May 2016 that Google’s use of the Java APIs without licence amounted to fair use. Oracle then appealed to the Federal Circuit for the second time.

It is this second appeal that the Federal Court pronounced itself on 27 March 2018 holding in favour of Oracle. That Google’s use of Oracle’s Java APIs without licence did not amount to fair use but a copyright infringement and has thus sent it to the trial court – California District Court – for the determination of damages.

In the meantime, Google has the option of petitioning the Supreme Court for a second time for the review of the Federal Court’s determination. Should Google exercise this option, then the District Court will have to await the Supreme Court’s determination.

Read: The Case That Never Ends: Oracle Wins Latest Round vs. Google

However, Google’s failure to petition the Supreme Court will be then it would have been established that APIs enjoy copyright protection and that Google infringed upon Oracle’s copyright when it customised the Java APIs without a licence.

It will be interesting to see how this matter unfolds and how it will affect the now awakening Kenyan Market.

At KT Law Associates, we care about your Intellectual Property and are glad to see that you are not only rewarded for your intellectual effort but also get quite enjoyment of those rights enhanced through the relevant legal protection.

Our legal representation, advisory and consultancy services covers the different regimes of Intellectual Property including among others, Trademarks, Copyright, Utility Models and Designs and Patents. For legal assistance, or more information on how what we have on offer, kindly contact us.

Disclaimer:

This information is meant for general consumption and informational purposes. It does not and is not meant to form any legal advice. Reliance on the information as legal advice shall be at your own risk and we shall not be liable to any loss, damage or injury, suffered directly or indirectly as a result of any such misinformed reliance.

Should you however desire to receive legal assistance from us, kindly contact us to initiate the process. PLEASE NOTE HOWEVER that contacting us does not in itself create a relationship between us and you.

Brian Tororei speaks on Artificial Intelligence, Machine Learning and the Law

Brian Tororei, our Technology Media and Telecommunications lead partner, participated in a panel discussion on Artificial Intelligence, Machine Learning and the Law at Mettā Nairobi on 20 March 2018.

Brian Tororei speaking on Artificial Intelligence, Machine Learning and the Law at Mettā Nairobi on 20 March 2018

The discussion covered the basic definition of and distinction between Artificial Intelligence (AI) and Machine Learning (ML), reviewing their unique elements. It also focused on the ethical and legal issues around the deployment of artificial intelligence.

The Uber driverless car accident that occurred in Arizona US, also featured in the discussion on ethical questions touching on autonomous vehicles and whom to attach liability on in the event of an accident.

Read on the accident here.

The audience was also concerned about the claims that AI is taking over jobs. The panellists were of the opinion that while such trends were becoming a reality within the developed states and countries, it might be a while before Kenyans have a firsthand experience on the negative effects of AI in the job market.

It was also noted that jobs are likely to be created as people will be forced to engage their creativity and that there was no need to worry, especially with technical and specialised jobs that need people skills such as being empathic among others.

Appreciating that AI and ML rely heavily on the availability of data sets for the learning and training of machines, Tororei lamented on the fact that there is presently no specialised legal regime for Data Protection and Privacy in Kenya.

Brian noted that for AI and ML to be a reality in Kenya, we would need robust infrastructure including the establishment of data centres, deployment of broadband to increase internet penetration and the availability of reliable and sufficient electricity, among others, and a robust legal regime governing data protection and privacy, which would guide, inter alia, the collection, collation, analysis, storage and sharing of data.

Brian is keen on seeing the deployment of AI and ML in the delivery of legal services in Kenya and is benchmarking with international law firms. He looks forward to the time when AI and ML will become a reality and hopes to hold a conversation with a computer with natural language processing ability and computer vision among others.

On the regulation of AI and ML, the general mood of the panellists and the audience was that regulation was a Must have. While agreeing with the general mood, Tororei was keen to point out that beneficial regulation would be one from an informed point of view rather than a lazy and dismissive approach such as the one regarding Bitcoin and relate cryptocurrencies.

Brian hopes that the legislators and practising advocates would develop interest in cutting edge technologies such AI, ML and Blockchain Technology, among others, and dive into the technical aspects so as to properly inform their regulation with a forward looking approach rather than a knee-jerk reaction. That, Now

is the time to develop the interest and act on it.

At KT Law Associates, we care about your privacy and your data protection. We offer legal representation and consultancy services on how best you can safeguard the integrity of your data within your capacity. For legal assistance, kindly contact us.

KT Law Associates at 1st Kenya – Poland E-Health Summit

KT Law Associates’ Technology, Media and Telecommunications Team attended the first (1st) Kenya – Poland E-Health Summit held on 20th March 2018 at Windsor Country and Golf Club and organised by:

E-Health is presently Kenya’s top priority with the support and political goodwill of the President couple with a positive policy and legal framework. The existing business environment is very friendly to the deployment and development of various e-health initiatives, including, inter alia, telemedicine, electronic medical records, and hospital information systems.

The challenges in the operationalisation and implementation of already existing policies and available technologies, a common denominator in many other countries in the world, brings Poland and Kenya together presenting and interesting partnership for the sharing of regulatory experiences as well the establishment of viable business links and mutual scientific corporation.

To this end, the day’s sessions covered an array of topics including, among others, e-health regulations and strategy, regional platforms, e-prescription, e-referral and central medical data systems, Cloud computing in healthcare, ICT in the Polish Hospitals in digital transformation, the European Perspective: GDPR (EU General Data Protection Regulation) on Data Privacy and Business opportunities in ICT in healthcare in Kenya.

The Title Sponsors were: Microsoft,

and Asseco Poland


Through the sessions, there was a general consensus and belief that there is very fertile ground for collaboration in the implementation of their innovative e-health solutions not only between Polish and Kenyan entrepreneurs but also amongst entrepreneurs in Kenya and the county government.

Huge potential for the utilisation of polish technologies and experience in many e-health initiatives in Kenya were identified which are likely to lead to the establishment of valuable links between Kenya and Poland that would lead to many successful common ventures.

Data protection and privacy concerns were very alive especially in considering that Kenya lacks robust data protection and privacy laws.

KT Law Associates cares about your privacy and the integrity of your data. We offer legal and consultancy services on specialist areas including data protection and privacy. Kindly contact us for legal assistance.

Trump’s campaign data mining firm suspended by Facebook

Facebook published a blog post on 16 March 2018 confirming that it had suspended Cambridge Analytica and SCL Group, which are allegedly linked to President Trump, from Facebook.

Cambridge Analytica is alleged to have compromised data from the profiles of approximately 270,000 Americans through a third party application, called “thisisyourdigitallife,” which offered a personality prediction, and billed itself on Facebook as “a research app used by psychologists.”

Once Facebook users downloaded the app effectively granting consent to the developer to access information such as the city they set on their profile, or content they had liked, as well as more limited information about friends who had their privacy settings set to allow it, it is alleged that the developer then, against Facebook’s policies passed that information to third parties, including SCL/Cambridge Analytica, a firm that does political, government and military work around the globe.

Read more

Related story: How Trump Consultants Exploited the Facebook Data of Millions

At KT Law Associates, we care about your privacy and your data protection. We offer legal representation and consultancy services on how best you can safeguard the integrity of your data within your capacity. For legal assistance, kindly contact us