Hi Listers,

Have just finished the first read-through of this document, here are my initial thoughts/questions/concerns (in no particular order)

Registration fee
I am concerned that the registration-fee might be prohibitive for many startup ICT businesses - especially since this is not just a cost that is meant to cover the actual cost of processing the application, but is intended to cover the entire cost of the office of the data protection regulator (as mentioned in section 12.2).

This may lead to a situation where many/most startups either stay non-compliant with the law (in which case - then whats the point?), or they may be unable to launch new innovation due to compliance-costs.


Reporting frequency
As mentioned in section 11.4 the data protection officer needs to make regular compliance reports to "the office" but I could not find any mention of what "regular" means - is it once a year, once a month or ... It could be a rather significant administrative burden (especially for a SME) so that there are no quantification of "regular" worries me quite a bit.


Compliance levels
The way I see it a very high percentage of ICT startups would be subject to this law, but I fear that very few will have the capacity to actually become (and remain) compliant on this matter.
If compliance levels remain low then few consumers/end-users/customers will be requesting compliant vendors or even aware of their rights according to this law a negative circle will be created where no-one expect compliance and hence no-one will offer it.


No Breach notification incentive
8.2.6 and section 38.1 states that data controllers are obligated to notify on breaches - this is good and probably the most important element in my mind - accidents will happen but they key thing is that affected people gets notified (and of-course that measures are taken to prevent it happening again).
However section 70.1+2 tells us that a data-controller who "looses" data will be committing an offense and subject to a fine of (max) 10million kes.

This sounds to me like there are absolutely NO incentive to report a breach - in fact it kinda encourages data controllers to keep VERY quiet about breaches and hope that no-one notices.
Would it not be smart to make so that if the breach was reported to "the office" prior to "the office" receiving any complaints then any subsequent fine/penalty would be discounted i.e. 50% - but it would be 100% if no reporting had happened...

I just fear that the main point of the exercise - to ensure that people actually are aware if their data is "lost" and give them the ability to react before someone exploits their data.


Training / capacity
I wonder what kind of training program would be available for all the newly designated data protection officers.
How are we going to ensure that they get up to speed with this (new) legislation fast (?)


Scope
Initially I thought that effectively every company in Kenya would have to register (and pay registration fee) - as everyone would have private data on their employees in some kind of "system" / HR-file. Although my gut kinda told me that it is not the intention.

However section 56(a) sounds like it would exclude data obtained in relation to employment - Anyone else who have reached the same conclusion on this ?


Our own house
Looking internally I am actually in doubt if our company would need to register or not.
Our company builds and runs HR/Payroll management systems - and the system does hold private data, because... that is kinda what the system does
The reason that I am in doubt is when I read section 49(1)(c) where it explicitly exempts data related to assessment of taxes - and this is exactly what our system(s) does, so depending on how I read that we could be exempt (?) - but somehow I get the feeling that 49(1)(c) is intended specifically for government-bodies (read KRA) not private entities.. So am a little confused.


Security by design
Section 5.3.4 dictates that systems should incorporate "security by design", which is an absolutely great way to approach developing such systems.
However from what I have seen being developed while interacting with various SME's and startups "security by design" is not a principle that very many apply, or even have on their "radar".
To make things worse unless you do a very close evaluation of the actual systems and HOW they are developed it can be really hard to determine if they utilize "security by design"...
All in all this sounds kinda like wishful thinking - If it's meant as a way of creating awareness of "security by design" then great - but can't really see it as a condition.


Kind regards
Michael Pedersen

On 10/08/2018 21:51, Grace Githaiga via kictanet wrote:

Dear Listers

Please find the Policy and Regulatory Framework on Privacy and Data Protection here:
https://www.kictanet.or.ke/?wpdmpro=policy-and-regulatory-framework-on-privacy-and-data-protection

This is a consolidated document containing the draft policy and law, as drafted by the Task Force on Data Protection, which was constituted by the Cabinet Secretary, Ministry of ICT in May.

The Task Force is requesting for comments from the public, which should be submitted by September 12, 2018.

Please feel free to share the document with your networks.

Best regards


Githaiga, Grace

Co-Convenor
Kenya ICT Action Network (KICTANet)
Twitter:@ggithaiga
Tel: 254722701495
Skype: gracegithaiga
Alternate email: ggithaiga@hotmail.com
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