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Day 6: Policy and Regulatory Framework on Privacy and Data Protection- Institutional Framework
by Grace Bomu 30 Aug '18

30 Aug '18

Good morning listers, The office of the data protection commissioner (DPC) is established as a state office and is expected to be independent. The DPC will however be appointed by the Cabinet Secretary, ICT. To qualify for the office, one needs to have extensive knowledge in data science, law, IT and related fields and meet requirements on leadership and integrity(Chapter six of the Katiba) The functions of the DPC include: oversight and enforcement of the Act; registration of data processors and controllers; control over data processing activities; promotion of self regulation of actors; investigation of complaints; creation of awareness on the Act; ensure compliance with international obligations; research and related functions from other laws. Powers of the DPC include: investigations; obtain professional assistance if need be; facilitate alternative dispute resolution; issue witness summons; request for information from persons governed by the bill. Further, the DPC may request for data audits (clause 20); appointment of guardian for child online services (clause 29) Apart from the usual sources of funds (allocation by Parliament, donations, grants etc) the bill also states that the office of DPC may be funded by funds accrued in performance of its functions. Some public fears on creation of yet another public body are based on concerns about funding the body, an expectation that registration will mean paying for licences and that there is not sufficient capacity in the country to oversee data protection. The bill however only proposes that DPC issues certificates and does not mention registration fees. To guide our discussion today, questions include: 1. Are the functions and powers of the DPC adequate to implement the law? Are there any overboard provisions? 2. Considering that the government is a major data processor and controller, is the office of the DPC as structured in the bill sufficiently independent? As usual, please point out any good or problematic clauses. Welcome to the discussion -- Grace Mutung'u Skype: gracebomu @Bomu PGP ID : 0x33A3450F -- Grace Mutung'u Skype: gracebomu @Bomu PGP ID : 0x33A3450F

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Day 5: Policy and Regulatory Framework on Privacy and Data Protection- Offences and Remedies
by Grace Bomu 28 Aug '18

28 Aug '18

Offences are public in nature and their prosecution and sentencing is carried out through the criminal justice system. Remedies on the other hand may be considered from a civil lens and examples include damages, restitution, coercive (injunctions) and declaratory remedies. They are personal and their aim is to give justice to the injured person. A trend with newer laws is the provision of both offences and remedies. In the copyright law for example, in addition to criminal offences, one can recover profits from pirated material. Back to our bill, the following offences are created: *Offence * *Penalty * Knowingly supplying false information to the data commissioner during registration as a data controller or processor ( clause 15 (3)) General penalty under clause 59: 5 million shillings fine or 5 years imprisonment or both plus possible forfeiture of equipment and prohibition order Data controller or processor failing to notify the data commissioner about a change in particulars (clause 16 (7)) General penalty unlawful processing of personal data (clause 27) 5 million shillings fine or 5 years imprisonment Unlawful processing of sensitive personal data (part v) 5 million shillings fine or 5 years imprisonment Refusing to comply with a notice from the data commissioner or knowingly furnishing the commissioner with false information during investigations (clause 52(3)) General penalty Disclosure of personal data by controller against specified purpose (clause 58 (1)) General penalty Disclosure of personal data by processor without authority of controller (clause 58 (2)) General penalty Obtaining personal data without prior authority of controller or processor (clause 58 (3)(a)) General penalty Disclosure to a third party (clause 58 (3) (b)) General penalty Offer (advertisement) to sell personal data obtained through unlawful disclosure ((clause 58 (4)) General penalty The bill has taken the criminal law track and has not provided remedies targeting persons injured by contravention of the bill. It does however create a complaints mechanism where the public can lodge complaints with the data commissioner. The powers of the commissioner in addressing such complaints are limited to issuing notices.(and we shall be discussing more about the office powers of the data commissioner in due course) Our discussion today is on the question of choosing the offences route as opposed or in addition to the civil route. What are our thoughts on this? Should we have borrowed the pro-rated model of the GDPR where controllers/processors are charged administrative fines according to their revenue? And when we come to offences, are they adequate? Should the magnitude of the offence be measured against the size of the data processor or are all sins equal despite might of the transgressor? Listers, please share your views on these issues. As usual, we welcome identification of good and problematic clauses. Welcome to the discussion. -- Grace Mutung'u Skype: gracebomu @Bomu PGP ID : 0x33A3450F

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Day 2- Policy and Regulatory Framework on Privacy and Data Protection
by kanini mutemi 28 Aug '18

28 Aug '18

Day 2- Rights of Data Subjects Good morning Listers, Day 1 we commented on the principles of data protection mentioned in the draft policy and bill. Today, we will look at the rights of data subjects. For demonstration purpose, when you fill in your details at a mobile money agent’s shop– You- data subject The mobile money agent- data processor The data subject is the person to whom the data concerns. Here are the rights as listed in Clause 23 of the Bill. I have added comments underneath to help us visualise what these rights would mean in the future. 1. The right to be informed of the use to which the personal data is to be put Eg. When we leave our details at the entrance to buildings, I expect that they will explain what the data will be used for. 2. Right to access their personal data in custody of data controller Will we be able to demand from our mobile network operators to see our account details and transactional history? 3. Object to the collection or processing of all or part of their personal data Will we be able to opt out of the biometric ID registration proposed by the Ministry of ICT here <https://www.businessdailyafrica.com/economy/Biometric-IDs-listing-set-for-t…>? 4. Correction and deletion of false or misleading data Are we ready for a right to be forgotten? Should it be absolute? What do we think of these Listers? Are there other rights that ought to be included?

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Day 4: Policy and Regulatory Framework on Privacy and Data Protection- Data Controllers and Processors
by Grace Bomu 28 Aug '18

28 Aug '18

Good morning listers! Welcome to data protection bill/policy discussions. Last week, we went through the principles of data protection and rights of data subjects. We covered the right to privacy in its different forms including the right to be forgotten and consent. Today, we shift gears a bit and consider the issue of data protection from the point of the *processor and controller*. The bill defines a controller as one who designs data processing and the processor as one who collects, stores, retrieves , discloses, erases etc on behalf of a controller. General obligations for controllers and processors are listed in part IV and they include upholding the principles of data protection, protecting the rights of the data subject, duty to notify the subject about processing and breaches, acquisition of consent and security safeguards as regards personal data. It would be interesting to hear from data controllers and processors, views on: 1. restrictions on processing personal data (clause 30) where processors may not process data objected by the data subject or which has legal claims.What are the practical implications of restrictions? For example, if one company or government agency received a large number of objections in one period? 2. the protection of data subjects from profiling (clause 31). While we have seen negative effects of profiling during the political season, are there positives of profiling that could benefit the data subject and does this bill adequately balance both ends? 3. the bill makes it mandatory to notify data subjects in case of breach. How will this change sectors such as banking where issues of data breaches are never discussed with customers or the public in order to protect the confidence of the industry? 4. Finally, on the issue of sensitive personal data, which is subject to higher protection. Sensitive personal data includes person’s race, health status, ethnic social origin, political opinion, belief, personal preferences, location, genetic data, biometrics, sex life or sexual orientation. What are the practical implications for existing data sets held by for instance the registrar of persons, universities, schools, insurance companies etc? Is the list proposed by the bill exhaustive? The Senate bill for example defines categories such as trade union membership as sensitive data. Welcome to the discussion. Please point out any issues in the bill that are either very good and should be retained or problematic and should be improved. Tujadiliane. -- Grace Mutung'u Skype: gracebomu @Bomu PGP ID : 0x33A3450F

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Day 1- Policy and Regulatory Framework on Privacy and Data Protection
by kanini mutemi 28 Aug '18

28 Aug '18

Day 1- Principles of Data Protection Dear Listers, As GG had indicated on Monday, we will hold online moderated discussions on the policy and regulatory framework on privacy and data protection. I will kick us off with a discussion on the proposed principles of data protection (Part 5 of the draft policy and Part IV of the draft bill). There are seven proposed principles– (a) Fairness, lawfulness and transparency (b) Purpose limitation (c) Data minimisation (d) Storage limitation (e) Accuracy (f) Confidentiality and Integrity (g) Accountability To begin with, I welcome comments on -what is your first impression of the principles? -why do we need to set out principles? -are the principles clearly defined in the draft policy and bill? Tujadiliane! -- Mercy Mutemi.

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Data Protection and GDPR Training
by Mercy Njue 27 Aug '18

27 Aug '18

Dear Listers, Botlab is offering in house trainings on Data protection and GDPR. We customise the trainings based on organisations need assessments. If you would like to know more, or request for a quote, feel free to contact us. [image: BOTLAB Data protection and GDPR Poster.jpeg] -- Mercy Njue Founder Botlab Botlab Physical Address: Ngong hills Hotel along Ngong road, 5th Floor Office line: +254 700 915197 Email: Mercy(a)botlab.biz *Endless possibilities :* www.botlab.biz *"* What we are is God's gift to us. What we become is our gift to God. - Eleanor Powell

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Pilots, Pivots, Innovation and the corporate crutch
by Mbugua Njihia 27 Aug '18

27 Aug '18

Models of production and consumption are changing the world over. New market segments are also opening up due to the availability of broader choice and wallet capacity, driving lifestyle decisions. To this end many startups are emerging across industries either rethinking traditional ways of work or building out entirely new ways to create and present value. These tectonics can happen slowly or come as a short, sharp shock. Having been part of the start-up scene for many years in different capacities, I have noted the transition from the initial David and Goliath narrative where it was the start-up entrepreneur and team against the corporate juggernauts in a winner takes all, to one of partnership and collaboration albeit measured and cautious for the most part. The realization that both the incumbent and start-up need each other, especially so in emerging markets where greenfield opportunities would deliver terrific returns on investment on the back of new and stable technology and sometime low regulatory barriers is refreshing. Full thought - http://www.mbuguanjihia.com/business/pilots-pivots-innovation-and-the-corpo… *Regards,* Mbugua Njihia ᐧ

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(no subject)
by Davidson Thaba 24 Aug '18

24 Aug '18

Hi I see see see

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Re: [kictanet] Invitation to Data Protection Forum and Submission of Comments to Kenya Data Protection Bills (Thursday 23 August, 2018)
by Ephraim Percy Kenyanito 22 Aug '18

22 Aug '18

Dear partner , Greetings from ARTICLE 19 Eastern Africa. ARTICLE 19 in partnership with the *Centre for Intellectual Property and Information Technology*Law (*CIPIT*- Strathmore University Law School) and Kenya ICT Action Network (KICTANET) seek to convene a one day Data Protection Dialogue Forum from *8**am – 5:30pm*on /*Thursday 23 August, 2018). */ While, the Constitution of Kenya, 2010 guarantees freedom of expression and the right to privacy, under Article 31 and 33; Kenya lacks a legally binding comprehensive data protection framework while also retaining laws which are broad and can be used to infringe on privacy on citizen data. The lack of a comprehensive data protection law and existence of laws that can be broadly interpreted to allow for free collection of personal data, storage, usage, and dissemination to other parties has created a situation where citizens are not notified whenever their data is collected and do not have remedies whenever their data is breached on unnecessarily retained by both public and private actors. We note that the ICT committees of the Senate led by Hon Gideon Moi has drafted a Data Protection Bill 2018 and similarly, the Ministry of ICT Taskforce on the Development of the Policy and Regulatory Framework for Privacy and Data Protection in Kenya, chaired by Communications Authority’s Mercy Wanjau has developed a Policy and a draft Data Protection Bill aimed at a Regulatory Framework for Privacy and Data Protection in Kenya and to fill this gap. Please find below the links to the Data Protection Policy and Ministry Bill and the Senate Bill. http://jadili.ictpolicy.org/docs/privacy-and-data-protection-policy-and-bil… http://jadili.ictpolicy.org/docs/the-data-protection-bill,-2018-ch9IKrCm It is with this in mind that the 3 partner organizations and will be meeting multiple data protection experts, lawyers, academia/ data scientists, CSOs, journalists and bloggers to collate recommendations for policy reform on from *8**am – 5:30pm*on /*Thursday 23 August, 2018)*/at Strathmore Law School. Kindly confirm your availability at your earliest convenience to _ephraim(a)article19.org <mailto:ephraim@article19.org>_ Please note that even though you might not be able to participate physically, you can nominate a representative or comment on this bills and Policy via the links above. We look forward to your participation. Best regards, -- Best Regards, Ephraim Percy Kenyanito Digital Programme Officer *ARTICLE 19 EASTERN AFRICA * *DEFENDING FREEDOM **OF EXPRESSION AND INFORMATION* W _https://www.article19.org/regional-office/eastern-africa/ _Tw @article19eafric Fa_facebook.com/article19org <http://facebook.com/article19org> _PGP Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1

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Re: [kictanet] Day 1- Policy and Regulatory Framework on Privacy and Data Protection
by Kiarie Wagitungo 22 Aug '18

22 Aug '18

Dear Kanini, I am still reading the law. It takes time. But I am wondering, is consent a principle? I hope it is captured in the bill. Yours, Gerishon On Wednesday, 22 August 2018, kanini mutemi <kaninimutemi(a)gmail.com> wrote: > > > ---------- Forwarded message --------- > From: kanini mutemi <kaninimutemi(a)gmail.com> > Date: Wed, 22 Aug 2018 at 09:11 > Subject: Day 1- Policy and Regulatory Framework on Privacy and Data > Protection > To: > > Cc: Mercy Sumbi <mercy(a)mutemisumbi.com> > > > *Day 1- Principles of Data Protection * > > Dear Listers, > > As GG had indicated on Monday, we will hold online moderated discussions > on the policy and regulatory framework on privacy and data protection. I > will kick us off with a discussion on the proposed principles of data > protection (Part 5 of the draft policy and Part IV of the draft bill). > > There are seven proposed principles– > > > > > > > > *(a) Fairness, lawfulness and transparency(b) Purpose limitation(c) Data > minimisation (d) Storage limitation (e) Accuracy(f) Confidentiality and > Integrity (g) Accountability* > To begin with, I welcome comments on > > *-what is your first impression of the principles?* > > *-why do we need to set out principles?* > > *-are the principles clearly defined in the draft policy and bill?* > > Tujadiliane! > -- > *Mercy Mutemi.* > > -- > *Mercy Mutemi, Advocate*. > > > >

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