And in addition, we should insist that John Kariuki of NCS contributes. He has contributed on various other issues on this list in the past. They write the policies, that are made into laws we engage them on thereafter. Secondly, we also need to have government participants otherwise we risk being accused of being exclusive IGF discussants. Telecos with revamped legal departments could also generically raise some of their challenges in the e-i-legislations arena. I know key Civil Society and development partner chiefs who are lawyers by training-they should contribute. CCK? This is a debate you might not wish to be left out of and may need to be seen to embrace. Please chip in.. Na pia wengineo hapa na pale, changieni tafadhali... On Mon, Aug 18, 2008 at 9:00 AM, John Walubengo <jwalu@yahoo.com> wrote:
Hi all,
Hpe u had a good weekend. Today is day 6 of 10, but the theme is still on legal issues.
I still cant believe the learned friends have not spoken and left everything to Alex and Mike. If any of you runs into Evelyn R., Kihanya J., Omo J. or Clara R. just to mention a few, ask them if they can give us a shout without us having to 'open a file'
We have only today for this since tomorrow we move into the Economic Issues to be facilitated by a renowned IG expert to be unveiled in due course.
walu.
--- On Sat, 8/16/08, Alex Gakuru <alex.gakuru@yahoo.com> wrote:
From: Alex Gakuru <alex.gakuru@yahoo.com> Subject: Re: [kictanet] Day 5 of 10: IG Discussions, Legal Issues To: jwalu@yahoo.com Cc: "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke> Date: Saturday, August 16, 2008, 11:17 AM G8 links!
The introduction to this topic was on the presumption that consumers were the criminals proceeding to outline law enforcement challenges. The most convenient and common form of misrepresenting cyber crimes and law -- first take away all their rights then they struggle to regain one after the other... It is good that Mike presents both sides of the story. Telecommunication companies hold massive data on all individuals and they ensure that their on their "Terms of Use" and contracts users are "guilty until proven innocent" and the companies are at liberty to do whatever they please with our personal data.
Consider below extract from a local telecommunication company's Terms of Use: - ------------ 5. Use of your information
(The Company) may hold and use information provided by you for a number of purposes, which may include:
(a) Carrying out any activity in connection with a legal, governmental or regulatory requirement on (The Company) in connection with legal proceedings or in respect of crime or fraud prevention, detection or prosecution.
(b) Monitoring or recording of your communications for (The Company)'s business purposes such as marketing, quality control and training, prevention of unauthorised use of (The Company)'s telecommunications system and ensuring effective systems operation in order to prevent or detect crime.
---------
"May include" does not mean "limited to" - implying that they are allowed, for example, to share, sell, etc private data to their partners... Exactly what Mike points out to on the Business Week link.
Framed in ways suggestive of company "law enforcer" (illegal roles) onto "guilty" users. Notice how "Intellectual Property" is conveniently repeated. Or is it be assumed that consumers do not have any "intellectual property" they would wish protected? the companies should abide to also protect. BTW, There is an IGF Dynamic Coalition movement calling for a balance between Intellectual Property and development which includes Access to Knwoledge (A2K).<http://www.ipjustice.org>. Very resourceful!
Supposing earlier proposed M-Medicine went ahead in East Africa? Sold ailments data to pharmaceutical companies, that would hike medicines prices in outbreak zones at selected locations... You go to a bank with a water-tight business proposals and all bank turn you down. Reason? They have shared your medical history and they think you will soon "sleep in the shamba" your excellent business proposals notwithstanding.
In summary, unless Data Protection and Privacy Laws are enacted, the default should be to deny all telecommunication companies legal loophole to trade with personal information. And it should be seen to be enforced.
On a lighter note, should I sue a WiFi company for trespassing when their signals enter my laptop, or should they sue me for illegally access of their signal? Over to Ben Shihanya.
Thanks again Mike!
--- On Fri, 8/15/08, Mike Theuri <mike.theuri@gmail.com> wrote:
From: Mike Theuri <mike.theuri@gmail.com> Subject: Re: [kictanet] Day 5 of 10: IG Discussions, Legal Issues To: alex.gakuru@yahoo.com Cc: "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke> Date: Friday, August 15, 2008, 2:11 PM Not a legal opinion: It would be very difficult to apply existing common law (analogous to jurisprudence) to electronic crimes committed in a new era, atleast within the local context.
For these reasons it is necessary to define the crimes under distinct and separate legislation. Due to the borderless nature of the Internet (see shared link), it is necessary for such legislation to take a broad approach into account.
For instance there ought to be provisions that allow local authorities to seek the arrest and extradition of foreign based suspects from other jurisdictions for electronic crimes committed against citizens or local infrastructure owned by individuals or entities even though the suspects at the time of commission of the crime were present in other jurisdictions.
The same provision can allow private parties to pursue civil remedies in a similar matter and give them the basis where possible to enforce the judgement in the defendant's jurisdiction.
This for example would close the possible jurisdictional loophole of individuals crossing borders so as to commit electronic crimes from a country that lacks electronic crime laws. Current law is ill equipped in ensuring civil remedies, prosecution or arrest of local or international cyber criminals, 419ers, lurers of minors, harassers, electronically transmitted or created threats (threats to a person, threats to infrastructure by way of viruses, malaware, DoS etc) etc neither is it likely to be in a position to ensure serious consequences or deterents for the same or allow for the definition of crimes as distinguished here for an international gang of culprits:
http://www.secretservice.gov/press/GPA15-08_CyberIndictments_Final.pdf
It was recently reported that a bill or regulations to protect the data of consumers would be brought about as a means of
the CRBs. This could be model legislation/regulations to adopt to ensure that the public has a say in the manner in which their private information is used.
At the same time consumers ought to be able to instruct companies with whom they have business relationships with not to share
regulating that
same information with 3rd parties without their prior consent (ie opt-in/out). This is only effective if there are laws or regulations to provide for consequences when businesses violate the same.
As CRBs take root, there will be a likelihood that similar bureaus or entities will eventually start sharing information in real time, for example an underwriter of an insurance policy might want to check an individual's claim history across the industry to determine the level of risk the insured poses in determining policy premiums. Similarly an organization may want to conduct background checks for prospective employees in privately maintained electronic databases.
It is important that instead of regulations or laws being formed for sectors of the economy, that national data privacy laws and regulations be defined (or ammended) and on that basis refinement of specific regulations/laws could be made for sectors that require specific data requirements. Such regulatory foresight can reduce or avert the occurence of issues such as those seen here:
http://www.businessweek.com/magazine/content/08_31/b4094000643943.htm?campai...
On Fri, Aug 15, 2008 at 12:21 AM, John Walubengo <jwalu@yahoo.com> wrote:
Mornings,
Today and next Monday, we intend to thrash out
Internet Governance. The typical issues revolve around: -Jurisdiction & Arbitration (who resolves e-disputes) -Copyright & IPR (are they pro or anti-development?) -Privacy and Data Protection (how is the e-Citizens data abused/protected?)
I do hope the 'learned' friends will chip in since I cannot pretend to be an expert here as I introduce the general legal
dispute resolutions can be done through, · Legislation; · Social norms (customs); · Self-regulation; · Regulation through code (software solution); · Jurisprudence (court decisions); · International law.
There is however two broad conflicting schools of
resolving disputes occasioned by the Internet. One group claims that whatever happens online does have an equivalent 'off-line' characteristics and as such existing laws can easily be applied. E.g stealing money electronically is no different from stealing money
charges and subsequent jurisdictional procedures could apply. However, the second group feels that electronic crimes have a totally different context and must have a separate and totally new set of legislation or methodologies for resolutions.
The borderless nature of the Internet brings to fore
legal dimensions of principals. Basically, thought when it comes to physically and so Robbery the Challenges of
Jurisdiction and Arbitration as in yesterday's example, where content in one country may be illegal but is legal in another. Copyright and Intellectual Property Rights issues are also explosive as demonstrated by the Napster Case, where some young software engineers created software that facilitated sharing of (SONY) Music files across the Internet. Also related was the case of Amazon.com trying to Patent the 'single-click' method of buying goods online.
Other cases touch on Data Privacy where Business Companies have been known to sell customer records to Marketing firms without express authority from the Customers. Other times customer data is simply hacked into and Businesses are unable to own up (going public) to
the the
detriment of the
Customer.
Most of these issues are under discussion internationally at the Internet Governance Forum (IGF), World Intellectual Property Organization (WIPO) amongst other fora. They present emerging legal challenges and it would be interesting to know if stakeholders in the East African region are/should be involved in shaping the outcomes of any of these issues.
2days on this one, today and next Monday and feel free to belatedly respond to Day 1 through Day 5 issues.
References: http://www.diplomacy.edu/ISL/IG/ http://en.wikipedia.org/wiki/Napster
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