[kictanet] Online debate on African Union Convention on Cyber Security (AUCC)

Grace Githaiga ggithaiga at hotmail.com
Sun Nov 24 13:23:50 EAT 2013


Thanks Alice, Poncelet and Kivuva. 
Looking forward to your active contribution to the debate starting tomorrow.
WarmlyGG

Date: Sat, 23 Nov 2013 22:26:57 +0000
From: pileleji at ymca.gm
Subject: Re: [kictanet] Online debate on African Union Convention on Cyber Security (AUCC)
CC: kictanet at lists.kictanet.or.ke
To: ggithaiga at hotmail.com

Great move indeed Regards Poncelet

On 23 November 2013 16:18, Alice Munyua <alice at apc.org> wrote:


  
    
  
  
    Great going GG

      

      Appreciate it. 

      

      Best 

      Alice

      

      

      

      On 22/11/2013 08:42, Grace Githaiga wrote:

    
    
      
        
        
          Good morning Listers
          We would like to propose an online
            discussion on the
            African Union Convention on Cyber Security(AUCC)http://pages.au.int/sites/default/files/AU%20Cybersecurity%20Convention%20ENGLISH_0.pdf on multiple lists of
            KICTANet and
            ISOC-KE, in Kenya and on I-Network list
            moderated by the Collaboration
            on International ICT
            Policy in East and Southern Africa (CIPESA) 
            and ISOC -Uganda,  starting from Monday
            25th to
            Friday 29th November
            2013. We will also share the concerns
            with the best bits list http://bestbits.net/, the
            Internet Governance Caucus list http://igcaucus.org/ and
            Access Now https://www.accessnow.org/ since
            we would like to give as much input as possible.
          
          

          
          We have been in discussion with AUC and
            the drafters have
            accepted to receive our input despite having gone through
            this process two
            years ago with African governments. In light of this window
            of opportunity, we
            suggest we engage. AUC will discuss the convention during
            the AU ICT week scheduled for December 1-6, 2013http://www.africanictweek.org/
          

          
          For Kenya, it is important that we engage,
            the reason being
            that if Kenya signs into this convention in January 2014, it
            will become
            binding as stipulated in Kenya’s 2010 Constitution Article 2
            (6)  which
            states: Any
              treaty or
              convention ratified by Kenya shall form part of the law of
              Kenya under this
              Constitution. The
            Convention
            is therefore more like a Bill of Parliament.
           
          1.       Background to the
              African Union Convention
              on Cyber Security (AUCC)
          African Union (AU) convention (52 page
            document) seeks to
            intensify the fight against cybercrime across Africa in
            light of increase in
            cybercrime, and a lack of mastery of security risks by
            African countries.
            Further, that one challenge for African countries is lack of
            technological
            security adequate enough to prevent and effectively control
            technological
            and informational risks. As such “African States are in dire
            need of innovative
            criminal policy strategies that embody States, societal and
            technical responses
            to create a credible legal climate for cyber security”.
          The Convention establishes a framework for
            cybersecurity in
            Africa “through organisation of electronic transactions,
            protection of personal
            data, promotion of cyber security, e-governance and
            combating cybercrime”
            (Conceptual framework).
           
          2.       Division of the
              Convention
          Part 1   
                             
              Electronic transactions
          Section I:
                        Definition
            of terms
          Section II:
                       Electronic
            Commerce (Fields of application of electronic commerce,
            Contractual
            responsibility of the electronic provider of goods and
            services).
          Section III:
                      Publicity by electronic
            means.
          Section IV:
                     Obligations in electronic form
            (Electronic contracts, Written matter in electronic form,
            Ensuring the security
            of electronic transactions).
           
          Part II    PERSONAL DATA PROTECTION
          Section I:
                        Definition
          Section II:
                       Legal framework
            for personal data protection (Objectives of this Convention
            with respect to
            personal data, Scope of application of the Convention,
            Preliminary formalities
            for personal data processing).
          Section III:
                      Institutional framework
            for protection of personal data (Status, composition or
            organization, Functions
            of the protection authority).
          Section IV:
                     Obligations relating to the
            conditions governing the processing of personal data (basic
            principles
            governing the processing of personal data, Specific
            principles governing the
            processing of sensitive data, Interconnection of
            personal data files).
          Section V:
                       The rights of the
            person whose personal data are to be processed (Right to
            information, Right of access,
            Right of opposition, Right of correction or suppression).
          Section VI:
                     Obligations of the personal
            data processing official (Confidentiality obligations,
            Security obligations,
            Conservation obligations, Sustainability obligations).
           
          PART III – PROMOTING CYBERSECURITY AND
              COMBATING CYBERCRIME
          Section 1:
                       Terminology,
            National cyber security framework, Legislative measures,
            National cyber
            security system, National cyber security monitoring
            structures).
          Section II:
                       Material penal law
            (Offenses specific to Information and Communication
            Technologies [Attack on,
            computerized data, Content related offenses], Adapting
            certain information and
            communication technologies offenses).
          Section II:
                       Criminal liability
            for corporate persons (Adapting certain sanctions to the
            Information and
            Communication Technologies, Other penal sanctions, Procedural law,
            Offenses specific to
            Information and Communication Technologies).
           
           PART IV: COMMON AND FINAL PROVISIONS
           Section I:
                       Monitoring
            mechanism
          Section II:
                       Final responses
           
          The Proposed Discussion
          We have picked on articles that need
            clarity, and would
            request listers to kindly discuss them and provide
            recommendations where
            necessary. Also,
            where
            necessary, listers are encouraged to identify and share
            other articles that
            need clarifications that we may have left out.
           
          Day 1 Monday 25/ 11/2013
          We begin with Part 1 on Electronic
              transactions and pick on
              four articles which we will discuss on Monday (25/11) and
              Tuesday (26/11). 
          Section III: Publicity by electronic
              means
           Article I – 7:
           Without prejudice to Article I-4 any
              advertising
              action, irrespective of its form, accessible through
              online communication
              service, shall be clearly identified as such. It shall
              clearly identify the
              individual or corporate body on behalf of whom it is
              undertaken.
          Question: Should net
            anonymity be legislated? If
so,
            what measures need to be or not be considered? 
          Question: Should
            individuals or companies be obliged to reveal their
            identities and what are the
            implications? 
          

              Article I – 8:
          The conditions governing the
              possibility of promotional
              offers as well as the conditions  for participating in
              promotional
              competitions or games where such offers, competitions or
              games are
              electronically disseminated, shall be clearly spelt out
              and easily accessible.
          Question: Should an international (or
            should we
            call it regional) law legislate on
            promotional offers and competitions
            offered locally? 

            

            Day 2 Tuesday 26/11/13
          Article I – 9:

            Direct marketing through any form of
              indirect communication including messages forwarded with
              automatic message
              sender, facsimile or electronic mails in whatsoever form,
              using the particulars
              of an individual who has not given prior consent to
              receiving the said direct
              marketing through the means indicated, shall be prohibited
              by the member states
              of the African Union.
          

            
          Article I – 10:
           The provisions of Article I – 9 above
              notwithstanding, direct marketing prospection by
              electronic mails shall be
              permissible where:
          1) The particulars of the addressee
              have been obtained
              directly from him/her,
          2) The recipient has given consent to
              be contacted by the
              prospector partners
          3) The direct prospection concerns
              similar products or
              services provided by the same individual or corporate
              body.
          Question: Is this a realistic
            way of dealing with spam? 
          

            
          Article I – 27
          Where the legislative provisions of
              Member States have not
              laid down other provisions, and where there is no valid
              agreement between the
              parties, the judge shall resolve proof related conflicts
              by determining by all
              possible means the most plausible claim regardless of the
              message base
              employed.
          Question: What is the
            meaning of this article and is it necessary? Some
            clarity needed!
           
          Day 3 Wednesday  27 /11/13
          Today, we move onto PART II:
                PERSONAL DATA PROTECTION and
                will deal with three questions.
          Objectives of this Convention with
              respect to personal data
           Article II – 2:
          Each Member State of the African Union
              shall put in place a
              legal framework with a view to establishing a mechanism to
              combat breaches of
              private life likely to arise from the gathering,
              processing, transmission,
              storage and use of personal data.
          The mechanism so established shall
              ensure that any data
              processing, in whatsoever form, respects the freedoms and
              fundamental rights of
              physical persons while recognizing the prerogatives of the
              State, the rights of
              local communities and the target for which the businesses
              were established.
          Question: What is the
            relevance of this article? What
            are these state prerogatives? And given the increased
            interest of state surveillance,
            how can states balance respect of FOE while recognising
            state prerogatives? 
          Article II-6, II-7, 11-8, II-11, II-12,
              II-13 refer to a
              Protection Authority which is
            meant to establish standards for data protection. Article II
            – 14 provides
              for each Member
              State of the African Union to establish an authority with
              responsibility to
              protect personal data.  It shall
              be an independent administrative authority with the task
              of ensuring that the
              processing of personal data is conducted in accordance
              with domestic
              legislations.
          In article II-17 states that ‘Sworn agents may
              be invited to
              participate in audit missions in accordance with extant
              provisions in Member
              States of the African Union’.
          Question: Considering
            that this article seems to be tied to the Protection
            Authority, what is its
            relevance? And who is a ‘sworn agent?’ What
            should this authority look like in terms of its composition? 
          

            
          Article II – 20:
          …Members of the protection authority
              shall not receive
              instructions from any authority in the exercise of their
              functions. 
          

            
          Article II – 21:
          Member States are engaged to provide
              the national
              protection authority human, technical and financial
              resources necessary to
              accomplish their mission.
          Question: It appears that this
            Data Protection Authority is envisaged
            to be fully government supported. Therefore, should we be
            talking of its
            independence? In what way should this article be framed so
            that it ensures
            independence of the Authority?
          

            
          Article II – 28 to
              II-34 outlines
six
            principles governing the processing of personal data namely:
          Consent and of legitimacy,
          Honesty,
          Objective, relevance and conservation of
            processed personal
            data,
           Accuracy,
          Transparency and
           Confidentiality and security of personal
            data.
          Under each of the specific principles,
            detailed explanation
            of how each should be undertaken is offered.
          Question: Is this
            explanation and detailing of how to undertake each necessary
            in an international
            (regional) law
            necessary or needed? Is
            this
            legislation overkill?
          

            
          Day 4 Thursdsay  28/11/2013
              Part III
          Day 4 will focus on PROMOTING
              CYBERSECURITY AND COMBATING
              CYBERCRIME
          

          
           Article III – 14: Harmonization
          1) Member States have to undertake
              necessary measures to
              ensure that the legislative measures and / or regulations
              adopted to fight
              against cybercrime enhance the possibility of regional
              harmonization of these
              measures and respect the principle of double criminality.
          Question: What is the
            principle of double criminality here?
           
          Section II: Other penal sanctions
           Article III – 48
          Each Member State of the African Union
              have to take
              necessary legislative measures to ensure that, in the case
              of conviction for an
              offense committed by means of digital communication
              facility, the competent
              jurisdiction or the judge handling the case gives a ruling
              imposing additional
              punishment.
          Question:  What is the
            interpretation of additional punishment?
            Is this not granting of absolute powers to judges?
           
          Day Five 29/11/2013
          This will be dedicated to any other
            issue(s)that listers
            may want to raise in regard to the Convention. Further,
            listers can go back to
            issues of any other day and discuss them here.
          What other issue(s) would you like to
            raise?
           
          References
          DRAFT AFRICAN UNION CONVENTION ON THE
            CONFIDENCE AND
            SECURITY IN CYBERSPACEhttp://pages.au.int/sites/default/files/AU%20Cybersecurity%20Convention%20ENGLISH_0.pdf

          http://daucc.wordpress.com/
          http://www.thepetitionsite.com/takeaction/262/148/817/

          http://daucc.wordpress.com/2013/10/29/paper-review-basic-drawbacks-of-the-draft-african-union-convention-on-the-confidence-and-security-in-cyberspace/

          http://michaelmurungi.blogspot.com/2012/08/comments-on-draft-african-union.html

           
          Have a great weekend and see you on
            Monday.
          

          
          Rgds
          Grace
        
      
      

      
      

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-- 
Poncelet O. Ileleji MBCS
Coordinator
The Gambia YMCAs Computer Training Centre & Digital Studio
MDI Road Kanifing South
P. O. Box 421 Banjul
The Gambia, West Africa

Tel: (220) 4370240
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Cell:(220) 9912508
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www.ymca.gm
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