[kictanet] SIM CARD REGISTRATION & DATA PROTECTION ACT, 2019

Mutindi Muema missmutindi at gmail.com
Mon Mar 21 12:19:19 EAT 2022 

@Walu, if i had time to spare i would dig in, but billable work is hogging
my schedule right now. I can however add some direction for whoever has
time to delve into this- we all looking forward to any findings:

 Further to direction by Grace, Walu & Mutemi,  it seems work needed along
the lines of what the law says regarding:

   1. requirements for SIM card registration - probably KICA both Act and
   Regs as well as any relevant guidelines issued by CA. Kanini Mutemi
   reproduced a segment of KICA earlier. some work to get any other relevant
   provisions.
   2. @Walu  it is also important that any directive for re-registration
   has been issued by CA - the same be reviewed. Yes CA has a mandate ,
   content of any directions would also inform thai convo.
   3. Requirements for mobile money registration/use are also relevant-
   from my understanding mobile money legal framework is the National Payment
   Systems ACt (NPSA)& Regs and relevant guidelines under that. Cursory review
   of Act, I do not remember seeing requirements for photo here last time I
   reviewed this (which a while back) someone with time on their hands can go
   through requirements as well.
   4. Mobile banking regulatory framework- is different from mobile money
   framework. Mobile banking falls more within banking so Banking Act,
   prudential guidelines etc - we could actually have different requirements
   for registration of customers for  mobile banking in law than requirements
   for registration of mobile money (NPSA)
   5. Like Walu said - there is also need to review laws relating to
   ani-money laundering , terrorism fianncing etc to see requirements under
   those esp those that would relate to KYC as well as the deffinition of
   insitutions to which the obligations apply and if any distinction between
   application to businesses lines licensed under KICA (Sim card), NPSA
   (mobile money)versus licensees under Banking Act (mobile banking).
   6. All the findings then need to be reconciled with provisions of the
   Data Protection Act & Regs now in force :

(i) from a data protection principle perspective but then also
(ii) from a communications to data subject perspective- as evident in this
thread, data subjects have questions around this and compliance is
definitely impacted by clarity of comms to data subjects. This second point
is particularly important for data protection compliance as communications
helps with accountability and transparency with regards to what data
controllers/ processors are actually doing with data subject data and why.


Kind regards,
Mutindi
Advocate & Certified Information Privacy Manager (CIPM)-
International Association of Privacy Professionals (IAPP)



On Mon, Mar 21, 2022 at 11:44 AM Walubengo J via KICTANet <
kictanet at lists.kictanet.or.ke> wrote:

> Interesting discourse.
>
> I didnt know CA had a directive for SIM card re-registration but that's
> besides the point since its their mandate. The issues here is whether
> collecting photos of data subjects during registration is an overeach.
>
> From reading various comments its seems we have CA regulations, Banking
> regulations and Data Protection Regulations coming into play. It looks like
> Listers agree that the stringent Banking Regulations (e.g KYC) may kick in
> for MPESA registration, but not necessarily for basic subscriber (eg voice)
> registration.
>
> The argument seems to be whether the basic subscriber (SIM card)
> registration for say voice services, should be accompanied with digital
> photos since this may violate the data minimization principles of the Data
> Protection Act.
>
> I am persuaded that this is a valid concern - However, I request the
> lawyers to expand their search further and review the security laws. Is it
> possible that the Security Laws (as amended over time) could have enhanced
> basic service (eg for voice) registration to include photos of the
> subscriber?
>
> Such that in case there is a terror attack and the terrorists use voice
> communication (and not necessarily mobile money),  one would still want to
> track them down using their mug-shot?
>
> the lawyers can find out and tell us.
>
> walu
>
>
>
>
> On Thursday, March 17, 2022, 12:57:53 PM GMT+3, James Mbugua via KICTANet <
> kictanet at lists.kictanet.or.ke> wrote:
>
>
> Mwendwa,
>
> I agree with Mutindi we should isolate KYC issues with subscriber
> registration. That is the whole essence of purpose limitation. We cannot
> use banking regulations for subscribe registration. It is not to say that
> every mobile subscriber is automatically also an MPESA customer and that
> the information should be collected for use the day they decide to register
> for MPESA. In any case, it is also not to say that when they do register
> for mobile money, that they will not have to provide all the
> know-your-customer details including photographs.
>
> My point is that SIM registration must be limited in data collection to
> what is necessary and adequate for its stated purposes, and not more
> personal information than necessary.
>
> Mutindi,
>
> I will be raising it with the ODPC thanks.
>
> Regards,
>
> James G. Mbugua
> Data Privacy Consultant & Tech Policy Blogger
> @jgmbugua <jgmbugua at gmail.com>
>
> On Wed, Mar 16, 2022 at 9:31 PM Mwendwa Kivuva via KICTANet <
> kictanet at lists.kictanet.or.ke> wrote:
>
> Since SIM card data is used by a large section of the population for
> mobile banking (Safaricom has 30 million mobile money customers) - and
> banking regulations require a photo ID, should the regulation be harmonised
> for all mobile money customers to provide their photo ID?
>
> KICTANet had a Thought Leadership Forum with the ODPC, and the question of
> DPIA came up. I can't remember the response. The recording of the forum is
> available here https://youtu.be/Rmdvoc8Valo
>
> On Wed, 16 Mar 2022, 16:04 James Mbugua via KICTANet, <
> kictanet at lists.kictanet.or.ke> wrote:
>
> Listers,
>
> I am not sure if I am being paranoid but the SIM card re-registration
> order ostensibly by CA (Communications Authority) and which has mobile
> operators asking us to te-register our SIM cards by April or risk being
> deregistered, seems like regulatory overreach.
>
> CA says under the SIM Registrations regulations of 2015, MNOs are required
> to update their registers with details including ID documents and photo
> IDs. The reason given, ostensibly, is that many had their SIM details
> registered before that law came into place.
>
> Speaking of laws coming into operation, the Data Protection Act, itself
> came into effect in 2019. Significantly long after the said regulations.
>
> In seeking to protect privacy and personal data, the DPA  requires Data
> Minimisation where personal data collected should be:
>
> "adequate, relevant and limited to what is necessary in relation to the
> purposes for which they are processed (‘data minimisation’);" Sec. 25(d)
> DPA, 2019
>
> This means that data that the controller does not really need to achieve a
> specific purpose, should not be collected.
>
> Biometric information such as Passport Photos that the Operators will take
> and store,for example, are in my opinion, surplus to requirements.
>
> The identification of the subscriber can be done without collection of
> intrusive biometric data for example by using national IDs. CA explicitly
> asks that the operators verify details with the Integrated Personnel
> Registry System. so collection of biometric data to me is disproportionate
> and cannot meet the threshold of lawful basis.
>
> Being the later law, and by the Huduma Number case precedent, the data
> minimisation provisions of the DPA, 2019 in my opinion hold primacy and in
> fact impliedly, repeal or render unlawful, the requirements for photo
> taking for SIM registration in the 2015 regulations.
>
> 2. Data Protection Impact Assessment.
>
> Another question I would have for the CA, the Data Commissioner and mobile
> operators, is if, as per the precedent sent by Justice Ngaah in the Katiba
> Institute v. MoICT & others regarding the need for the conduct of a Data
> Processing Impact Assessment, has been carried out in this instance when CA
> proposes to have collected the data of more than 30 million subscribers
> including biometric data.
>
> I think this is a plain case of flouting judicial guidance viz a viz when
> DPIAs should be carried out and CA should have had this carried out first
> before issuing the said directive.
>
> Regards,
>
> James G. Mbugua
> Data Privacy Consultant & Tech Policy Blogger
> @jgmbugua <jgmbugua at gmail.com>
>
>
>
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