[kictanet] [urgent concerns about the economic risks of GoK facilitating or allowing such an exercise without a comprehensive legislative framework or strategy] Online discussion on social-economic impact of broadband in Kenya

Thu Apr 18 16:35:46 EAT 2019

[Listers: I have included links below as a reading list for anyone interested in learning further about trade secrets and managing economic espionage risks]
Thank you Mwendwa for your response. 
You seem to be aware of the specific terms of the engagement. Given that this is a government supported (hence public) process can you (or anyone with the details) please publish, or share a link to, the Terms of Reference, in public interest, to give clarity on Government's role in this, the governing framework, and precisely how Kenya is envisaged to benefit - in terms of both local and international competitiveness?
Kenya is a low income economy and our businesses struggle to gain much needed international foothold due to a lack of strong competitive advantage. Part of that reason is our historic laissez-faire attitude towards intellectual property - which leaves us exposed to exploitation by IP savvy entities. This is aptly captured in your phrase... "They are not collecting any data, just ideas". First, what is "big data"? Does it not include unstructured data (online conversations, publications, debates, ideas etc)? Big data and AI are not just buzzwords - these technologies can do things we never thought possible just 10 years ago (like extracting unseen competitive insights on a global scale - to give information assymetry advantage to holders of the big picture).

Secondly the phrase "just ideas" points to a worrisome lack of awareness on the scope (and potential value) of intellectual property - with the common belief being that only industrial patents, trademarks and copyright are intellectual property. Yet the most potent, and most valuable type of intellectual property is trade secrets - including information about the economy, local ideas (which capture extremely valuable cultural context), economic plans and government strategies. There seems to be a a lack of awareness in Africa (even among intellectuals) that local cultural / indigenous insights can be an incredible source of global competitive advantage and economic growth.

A casual attitude towards IP does not support our President's Big Four objectives e.g. turning Kenya into a competitive manufacturing, export oriented Nation. How do you develop an internationally viable manufacturing industry, especially in technology sector, if you don't protect potential sources of competitive advantage? If we focus on commodities, we will only be exploited for cheap labor - which is no longer a viable path to growth (robots are getting cheaper which is reducing demand for cheap labor). We missed that bus already - we have to chart new paths for growth.

Only poor countries do things in public domain without first conducting a formal (and holistic) sensitivity analysis and redacting (or controlling / driving activities for collection of) any information that is potentially valuable to the country, its indigenous businesses or potential competitors. 

We do not have any laws that protect trade secrets. The idea of identifying and protectings ources of national competitive advantage does not seem to exist in our country. This is an extension of our pattern of exporting raw materials (in this case ideas / data - which we give away for free/peanuts) and then importing finished goods (platforms / content / software) - a net loss where we literally refund the raw material purchaser and then add something on top!... it does not make sense at all, but we do it robotically for some unexplained reason - and we remain a poor country that cannot offer credible opportunities to its youth for the same reason. 

The lack of a modernized legal framework on the protection of information assets makes our country a literal free-for-all for mining valuable information - which is likely costing us billions in lost opportunities (in the US alone it is estimated at USD $300 billion - with a further losses of 2.1 million jobs - and this is a country that is literally paranoid about IP).

In wealthy countries, Trade Secret laws are more powerful than Patent Laws (with global enforceability under a national security framework). Do we have a modern framework under which such idea mining exercises can be conducted to guarantee that we don't lose critical sources of competitiveness as a country? Without a framework or rules, or an appreciacion of economic espionage risks, we are sabotaging our country's future.

Finally the term "global organization" can be misleading as it implies multilateral stakeholders. Apparently IDC is a Private Chinese owned MNC with global presence. It was previously owned by an American but was sold off in 2017. This is apparently not disclosed on it's website. When consuming research, it is important to know potential sources of conflict of interest - thus disclosures about ownership, funding and oversight are extremely important. Reports that do not have proper disclosures are risky and potentially harmful to the targeted consumers. 

My contribution on this issue is not about specific entities - its about highlighting serious policy gaps that are (and have been) harming our economy. Let's look the bigger picture please.

Links (background reading):
1. Overview of trade secrets and why they are critical to SME and econimic competitiveness
https://www.wipo.int/wipo_magazine/en/2017/06/article_0006.html
https://en.wikipedia.org/wiki/Trade_secret
2. Overview of economic espionage risks and challenges (includes discussion of unregulated methods of conducting espionage e.g. exploitation of relationships and/or events to collect trade secrets.. estimated losses in US alone is $300billion with loss of about 2.1 million jobs... its not a trivial issue):
EXCERPT: "Economic espionage involves fundamental questions about a nation’s economic interests, which in turn are part of its national security... Also complicating efforts to counter economic espionage is the variety of direct and indirect methods that foreign collectors use to obtain valuable data... Public venues such as conferences, conventions and trade shows offer opportunities for foreign adversaries to gain access to U.S. information and experts in dual-use and sensitive technologies."
 https://www.worldpoliticsreview.com/articles/12025/the-challenge-of-economic-espionage
https://www.investopedia.com/terms/e/economic-espionage.asp
https://www.americanbar.org/groups/business_law/publications/blt/2017/05/05_kahn/
3. IDC ownership vs conflict of interest debate
https://www.brightworkresearch.com/itmedia/2019/02/21/can-you-trust-idc-and-their-now-china-based-owners/
https://www.channelweb.co.uk/crn-uk/news/3003645/canalys-berates-idc-over-new-chinese-ownership
Have a nice day!
Brgds,Patrick.

Patrick A. M. Maina
[Cross-domain Innovator | Independent Public Policy Analyst - Indigenous Innovations]

    On Thursday, April 18, 2019, 9:19:14 AM GMT+3, Mwendwa Kivuva <Kivuva at transworldafrica.com> wrote:  

Thank you Patrick for those thoughtful remarks. Waswahili call this chemsha bongo. (Brain teaser)

Let me say this before I respond inline:
KICTANet is an open platform for catalyzing ICT reforms in the region. It does not discriminate on any stakeholder group. It does not have heroes or villains. Any stakeholder can originate healthy debate on the state of our ICT, and anyone can contribute at will. Policy options on enabling and expanding broadband and local content is one of the most debated topics on this list. And with good reasons. Because the state of play in those areas remain lower than our comparison countries.  
As a bonafide lister, I will weigh in on some of the issues you have raised. 
On Wed, 17 Apr 2019 at 19:29, Patrick A. M. Maina <pmaina2000 at yahoo.com> wrote:

 Dear Listers,
Some urgent observations and concerns...
IDC is apparently a private, Market Intelligence Multinational Corporation that conducts market research to collect valuable COMPETITIVE DATA, which it then packages and SELLS (e.g. in various reporting formats) as its own "products", to whoever is interested (possibly including countries or corporations that compete with Kenya, or are potential competitors, or can contribute materially, to the irreversible erosion of valuable international competitive advantage for Kenyan businesses, denying our country much needed forex revenues).

Although I am not an IDC agent, I think IDC being a global organisation is in a better position to get into contact with other global organisations when they are doing landscape related research. I don't think they have a dog in this fight apart from being contractors to conduct research. They are not collecting any data, just ideas. The entire research will be public, this is not a report they will be selling.

Huawei is an MNC vendor that provides broadband equipment and/or services (which I believe includes content platforms and/or services). It likely has a commercial interest in this initiative and stands to gain materially - whether directly or indirectly, IMO.

Any open available research on our broadband landscape would benefit all players including Government, International vendors, and local players including ISPs, and investors. Probably the main concern here is how the research findings may be shared.  
What exactly is Government's role in this and what measures have been put in place to ensure that Kenya's interests, Public interests, are fully protected? Or are we willing to happily give out to a foreign company what could potentially be the country's most valuable intellectual resource (our national trade secrets in the form of market intelligence data)? 

I don't see anything IP related in a landscape research of broadband penetration and usage. Nor am I aware of any regulations preventing organisations (non-profit, for-profit, local or international) doing research whose findings will benefit Kenya. As stated in the introductory email, the government is a partner in this research and is fully involved in all decisions, along with the collection and use of all data. In fact the report is primarily for their, and “Kenyans” benefits. I apologize if it was not clear before that this is a report for public benefit.

There is a reason why high income countries don't do things this way. Even Nations need COMPETITIVE ADVANTAGE to compete effectively in international markets! This is so critical prosperous Nations continuously identify (and vigorously protect) NATIONAL TRADE SECRETS as critical and STRATEGIC NATIONAL ASSETS. 

What trade secrets are these?  

Are we not aware that Africa's poverty is self sustaining because we consistently ignore (or grossly underestimate the value) the most essential fundamentals of economic prosperity (e.g. property rights)? 
Are we really incapable of conducting our own analyses, strategies and market studies? Are we really unable to set our own agendas and priorities for our (and our children's) long term prosperity?

Very good point. KICTANet for example, has conducted major research on ICT policy in Kenya and the region over the years, and the resources are open and publicly accessible on the KICTANet website through a Creative Commons license. This sturdy will also be publicly accessible. As for market studies on the Internet ecosystem in Kenya, there are many types of studies that have been conducted by many other local and international players ... Communications Authority, GSMA, ITU, ATU, etc. Of course more research is welcomed because it helps triangulate, and challenge research of each other. Indeed, we are all encouraged to do more research. Is this not the reason when we get that black cap with a string on the side, the professor exclaims "I give you powers to read and write". So yes, let us do this research, and another, and another. 

As we move towards 4iR, the ability to compete internationally within the digital realm will be critial and paramount. Given this knowledge, is it wise for government to encourage or facilitate (or even allow) the mining of indigenous ideas and market intelligence data by foreign corporations without demonstrating full awareness of (and concern about) the strategic implications?

This is answered above

The 3 working days notice is very telling - and a good reason for boycotting the exercise. When you don't want someone to participate (or dont care much for their inputs), you give them the shortest notice possible. Has it been considered that this short-notice approach can contribute to speculations that there is already a parallel document whose findings and recommendations have already been made - and we are now working backwards to get stakeholder rubberstamp for "ownership" purpose, pending to release?

If you have been on the list long enough, you will realize that KICTANet runs periodic debates on the list. This debates don't need any prior notice. You for example has originated very healthy debate on the list before notifying listers in advance. And we as listers take up and run with the debate until its final conclusion. For this particular debate, KICTANet actually has control over the timeframe. It is a discussion on the state of our broadband. Like a roundtable, only that it is online facilitated by technology. Listers are only required to be armed with their experiences, and realities on the ground. There is no background reading, or materials to be shared. So a four day discussion would be enough. If it stretches for a month, why not. The list will be active and buzzing with positive tech energy and optimism.   
The above will hopefully concern local content producers as well: Knowing how procurement and importation opportunities drives initiatives or "interventions" in Kenya, Is this "study" a precursor that lays ground, at policy level, for a flood of imported content platforms and foreign content? Can this issues be credibly discussed in a (potentially conflicted) vendor driven process?

I have clarified the position of the list in facilitating discussions. If there was any conflict, there would be censorship on what listers can discuss. But that is not the case. KICTANet espouses all human rights attributes including freedom of opinion, speech, and expression. KICTANet champions what is good in Article 32 and 33. 
That said, this report is not being used as private input for any content. Neither Huawei nor IDC produce content. The only stakeholder involved in the report involved in content is actually the Kenyan government, so indeed we hope this report will help the government improve local content amongst many other recommendations from the report.

Is there an internationally enforceable legal and/or contractual framework for this initiative to ensure that any data, trade secrets or any information that is potentially sensitive or valuable to Kenya's economy (in secret form) is protected and that we will not lose intellectual property or national competitive advantage - in the long, mid and short term?

Where are the lawyers on the list? What is the potential IP that can come out of this study that is sensitive or valuable in secret form? Presumably the fact that the study is involving KICTAnet stakeholders, and is going to be shared with KICTAnet should be a benefit, compared to the alternative of doing the study without stakeholder input, which I believe is something that you have criticized before. Do you welcome the chance to give input, or would you prefer not to? Of course if you prefer not to, you don’t need to.

>From the circular repetition, this has started to feel like a filibuster. 

>From an audit perspective, has it been considered that the vendor leading the initiative has been accused by the US Government of allegedly having material conflicts of interest that could impact the national competitiveness of entire countries (e.g. risk of unauthorised collection of sensitive economic or other data)? 

And US has their own competitors to the vendor, and they have to protect their turf. Do we have our own equivalent? Do we have a turf to protect with vendor wars? If 1 or 2 countries have problems with Huawei (for whatever reason, Huawei claims they are politically motivated not based on evidence) and 200+ other countries do not have a problem with Huawei, what does that mean? If you read Huawei’s own (copious) communications on this topic, as well as that from the various governments and companies who use their products, you can draw a fairer conclusion. I believe you can have discussions with Huawei who are on this list and welcome to discuss any issue or question you have by email or face to face

Has GoK Auditor General and other relevant Government agencies formally studied the US Government allegations, to *objectively* ascertain veracity, given GoK's apparent close relationship with the company? Has the Government established a formal position on the issue? Had the company been formally cleared to lead potentially sensitive data mining initiatives in Kenya in view of Kenya's strategic and public interests?
Why is this "debate" is happening AFTER the National Broadband Strategy has been validated and the public participation process concluded? Are there linkages to NBS? What are they and why should a foreign corporation drive these linkages and end up owning and selling our competitive market intelligence data (in total violation of our Constitution's requirement that Government has a CONSTITUTIONAL DUTY to protect Intellectual Property)?

The end of one sturdy is not the end of all research. It should actually be the beginning of a new sturdy. 
Again, what IP are you talking about? 

There could be other issues / risks that are not articulated above and I invite takeholders to reflect deeply and share their thoughts in public interest.

You have raised may pertinent questions. And this constitutes a healthy debate. I hope at the end of this all, the people who live a few kilometers from major cities can also enjoy affordable and reliable always on broadband with relevant local content. That is all we are striving to achieve.

I also invite Government stakeholders to please clarify any area of misunderstanding in the issues stated above, from a public interest perspective. 
Hopefully GoK will take over this exercise and do it properly as a strategically sensitive public sector project - starting with a demand-side-stakeholder identification, sensitization, and onboarding exercise across the entire country - coupled with a parallel (but linked)  initiatives to ensure holistic and strategic legal or rules framework that considers holistic issues at the demand side and their impact on supply side. 

Not speaking for GoK ... but From the introduction to the topic, GoK is indeed a core part of this exercise and has identified partners to undertake this research exactly as you seem to want, so what is the problem you are identifying?

Stakeholders need to start pushing back more vocally on short-term patchworks of supplier driven interventions (which create more problems elsewhere via unplanned consequences) otherwise we will always be complaining that government is doing X yet we never guided the government on what is the right path.
We need a National Economic Materplan for ICT from which, and to which, all initiatives can be traced and measured using meaningful economic metrics and feeding into Vision 2030 and Big four - without risking our longer term competitiveness. What happens *after* 2030 (only a decade away)?

 There is the MTP 3 which you can look at; let alone the NBS and other documents.

Let us build self-confidence in our ability to architect our own strategies and solutions. I have seen & met so many brilliant minds in stakeholder forums/events and there is not a speck of doubt in my mind that we have more than enough talent and brains as a country to guide us out of mass poverty and into mass prosperity. 
We need to start believing in the power of ideas.. and in ourselves, that *we can* do things, and let us hold on to hope / optimism, no matter how little, that the artificial impediments (e.g. corruption, nepotism, powerful lobbying and brazen impunity) which keep our country poor, can (and will) one day, be overcome.
Have a great evening,Brgds,Patrick.
Patrick A. M. Maina [Cross-domain Innovator | Independent Public Policy Analyst - Indigenous Innovations]

    On Wednesday, April 17, 2019, 2:25:44 PM GMT+3, Mwendwa Kivuva via kictanet <kictanet at lists.kictanet.or.ke> wrote:  

Dear Listers,

IDC is conducting an assessment on the state of play and impact of broadband in Kenya, broadly looking at the socio-economic impact on consumers, businesses and various sectors like agriculture, education, healthcare, finance and government. This assessment has been commissioned by Huawei in collaboration with Ministry of ICT and the Communications Authority. It has the overarching objective of supporting the policy making process to develop broadband services and infrastructure throughout Kenya and achieve substantial economic impact in the economy. Other partners in the study include the ICT Authority and the National Communications Secretariat.

The assessment will involve a review of the current state of play in the sector as well as gaining insights from a wide range of stakeholders on the barriers and recommendations to increasing the impact of broadband. Among the key stakeholders identified include KICTANET, from whose members IDC will seek to gain civil society and other stakeholder perspectives including real life examples of impact of broadband, challenges we face in increasing impact of broadband and recommendations on interventions needed to address the challenges identified. This will be conducted as an online debate facilitated and moderated by KICTANET from 23rd to 26th April 2019.

Through the online discussion, we will also seek to understand the current state of play of broadband in Kenya, including:

   - What barriers are there in increasing impact of broadband?
   - What recommendations can counter the barriers in increasing impact of broadband?
   - How is the sector regulated and what policies are in place? How is the business environment for those who want to venture into provision of broadband services?
   - How do we create the skills and demand and use cases for broadband?
   - What local content is there and is it having an impact or not? What type of local content are we lacking?
   - How are users and businesses benefiting from broadband?
   - Any other issues.

Please note that lister may add any other issue on broadband that come to mind.  After the discussion, a summary report will be developed by KICTANET which will subsequently be validated during a face to face meeting. IDC will incorporate relevant findings into the broadband market assessment.

Sincerely,______________________
Mwendwa Kivuva.
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