Hi KICTA Net members. I'm Rafe Mazer, a consumer protection in digital financial services specialist working in Kenya the past 5 years (and globally on this toic for 10+ years.)
1. The allowance for 30 days to honor a data subject's request for information held on them.
In a digital economy, this is an excessively long period, and also quite a blunt instrument to apply across the entire economy, where health records are different from government records are different from financial records, etc. This would also kill the utility of portability in spaces like FinTech. Imagine I want to use my economic history with data controllers to get competing mobile loan offers. It could take up to 30 days to share that information, which is not aligned with the near-instant nature of these products and consumers' expectations on timing. Already the Bill rightly notes portability should only apply where "technically feasible" to exempt low-tech industries or providers, so there is no sense is saying that those who are deemed to be able to comply technically with portability should have up to 30 days to do so. If this language is kept in it will be used to delay--and defacto deny--consumer use of their data for increased choice in digital segments of the economy.
Further, since access to information is included in the same section as portability, and they are not explicitly differentiated, you could argue data controllers have not just 30 days to honor a portability request, but to even tell you what data they hold on you the data subject. This is far too long a time to permit for a basic consumer data right. Right now some providers offer financial statements to the data subject much faster than that--in minutes or seconds--but allowing 30 days could encourage setting practices to that standard going forward, reducing consumer access to their own data not improving it.
2. The allowance of a "reasonable fee" to be charged for a portability request could lead to anti-competitive and excessive pricing. "Reasonable" is highly subjective, and we have seen Competition Authority already had to intervene to stop anti-competitive use of wholesale USSD rates in mobile financial services (
https://techweez.com/2017/03/17/cak-wants-safaricom-lower-ussd-charges-mobile-banking/). It is highly likely a "reasonable fee" window would be deployed similarly where beneficial to firms and require ex-post intervention. The original language from the 2018 Bill where this was free of charge seems a much better approach.
Curious to hear others' thoughts or context on this section, and how KICTANet could help to fix this section for the final version of the Bill so we don't create an anti-innovation and anti-consumer portability regime that will be the law of the land.
Thanks for the chance to share and discuss on this platform,
Rafe Mazer