[kictanet] Computer and Cyber crimes bill 2016 Day 2 of 5 Part III Investigation Procedures

Wed Jul 27 11:56:33 EAT 2016

Hey Barrack,

Now, concerning the issue of illegally obtained evidence in cybercrime
trials, I think the bill justifies it. It gives leeway to security agencies
to access personal data held by data custodians without a warrant.
The clauses I highlighted are weapons that will be used to infringe the
right to privacy. The only recourse one has is an appeal either to the High
Court or Court of Appeal once the powers at be have started intercepting
your communications according to Section 30.
Hope that advices you on the situation we will have before us once the Bill
is enacted without any changes.

Cheers
On Jul 27, 2016 8:51 AM, "Barrack Otieno" <otieno.barrack at gmail.com> wrote:

> Hi Francis,
>
> You raise an important point. In a recent tribunal, call data was used
> as primary evidence to establish a tribunal. However during cross
> examination the purported source of the call data denied providing the
> evidence that was purportedly submitted using their name thus putting
> the whole tribunal into jeopardy, in your opinion as a legal
> practitioner and other legal practitioners how does this bill prevent
> misuse of the legal process or the call data as was the case in the
> tribunal? trumped up charges if a very common practice and its even
> worse when your data is purpotedly accessed without your consent and
> used for ill intentions.
>
> Regards
>
> On 7/26/16, Francis Monyango via kictanet <kictanet at lists.kictanet.or.ke>
> wrote:
> > Hey Listers,
> > I have waited for this chance since the Bill was first shared. As a human
> > rights advocate, my eyes were after clauses that are likely to be abused
> to
> > limit rights and fundamental freedoms. I was able to come across some
> > provisions which are likely to limit Art 31.
> > Section 22, the power to search without a warrant and to confiscate a
> > computer will be abused. In the past they have done that and this
> provision
> > will just empower the powers at be to do it more on those who have
> > dissenting opinions.
> > Section 24(6) this provision requires a police officer to just apply to
> the
> > I.G for an order to compel a service provider or a data custodian to
> share
> > your data. This provision is likely to be abused.
> > Section 25, I wonder at what point will the officers seek leave of the
> > court for the preservation and disclosure to take place?
> > Section 26 & 27 are on the need of a court order to allow ones
> > communications to be intercepted. Still, doesn't sit well with me. For
> how
> > long will ones rights to privacy be limited? I feel like this provision
> is
> > likely to be abused.
> > One can appeal according to Section 29, but how will one know that their
> > communications are being intercepted?
> > These provisions give too much power to security agencies.
> > On Jul 26, 2016 8:05 AM, "Kelvin Kariuki via kictanet" <
> > kictanet at lists.kictanet.or.ke> wrote:
> >
> >> Dear Listers,
> >>
> >> Thank you for your contribution on yesterdays discussions on the
> >> offences,
> >> feel free to still comment on it under that mail stream posted by
> Barrack
> >> yesterday.
> >>
> >> Today we discuss the Investigation Procedures of this bill. It outlines
> >> the powers and procedures to be followed by the authorities in carrying
> >> out
> >> computer and cyber related offences investigations.
> >>
> >> This section touches on pertinent issues as outlined below:
> >>
> >> 20 — Scope of procedural provisions
> >> 21 — Search and seizure of stored computer data
> >> 22 — Power to search without a warrant in special circumstances
> >> 23 — Record of and access to seized data
> >> 24 — Production order
> >> 25 — Expedited preservation and partial disclosure of traffic data
> >> 26 — Real-time collection of traffic data
> >> 27 — Interception of content data
> >> 28 — Obstruction and misuse
> >> 29 — Appeal
> >> 30 — Confidentiality and limitation of liability
> >>
> >> You can access the bill here: http://www.mygov.go.ke/?p=11234 or
> download
> >> the attached document.
> >>
> >> *The Concerns*
> >>
> >> 1.        To what extent are the service providers supposed to disclose
> >> their client data to the authorities?
> >>
> >> 2.       Does any of the search or seizure powers given to authorities
> in
> >> this section violate any privacy rights enshrined in our constitution?
> >>
> >> 3.   Has this part extensively covered all the investigation procedures
> >> required for all the offences stated in part II?
> >>
> >> 4.   Does it match the international standards? If it does not, kindly
> >> point out areas that need to be incorporated into the bill.
> >>
> >> N/B: Feel free to raise any concern or question not suggested here.
> >>
> >>
> >> We are looking forward to your feedback on the above concerns and much
> >> more.
> >>
> >> Thank you.
> >>
> >> Barrack and Karis.
> >>
> >> --
> >> Best Regards,
> >>
> >> Kelvin Kariuki
> >> Twitter Handle: @teacherkaris
> >> Alt email: kkariuki at mmu.ac.ke
> >> Mobile: +2547 29 385 557
> >>
> >>
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> >
>
>
> --
> Barrack O. Otieno
> +254721325277
> +254733206359
> Skype: barrack.otieno
> PGP ID: 0x2611D86A
>
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