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<body>Great points Michael. <br><br>We are looking into having a moderated debate on the list, and your contribution is already noted.<br><br>Stay tuned!<br>
<br>
<br>
Best regards<br>
<br>
<br>
Githaiga, Grace<br>
<br><br><br>On Saturday, 11-08-2018 at 01:26 Michael Pedersen via kictanet wrote:<br><blockquote style="border:0;border-left: 2px solid #22437f; padding:0px; margin:0px; padding-left:5px; margin-left: 5px; ">
<p>Hi Listers,</p>
<p>Have just finished the first read-through of this document, here
are my initial thoughts/questions/concerns (in no particular
order)<br>
</p>
<br>
<b>Registration fee</b><br>
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).<br>
<br>
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.<br>
<br>
<br>
<b>Reporting frequency</b> <br>
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.<br>
<br>
<br>
<b>Compliance levels</b><br>
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. <br>
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.<br>
<br>
<br>
<b>No Breach notification incentive</b><br>
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).<br>
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.<br>
<br>
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.<br>
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...<br>
<br>
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.<br>
<br>
<br>
<b>Training / capacity</b><br>
I wonder what kind of training program would be available for all
the newly designated data protection officers.<br>
How are we going to ensure that they get up to speed with this (new)
legislation fast (?)<br>
<br>
<br>
<b>Scope</b><br>
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.<br>
<br>
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 ?<br>
<br>
<br>
<b>Our own house</b><br>
Looking internally I am actually in doubt if our company would need
to register or not. <br>
Our company builds and runs HR/Payroll management systems - and the
system does hold private data, because... that is kinda what the
system does <img src="/views/Extjs3/themes/Group-Office/images/emoticons/normal/wink.gif" alt=";-)"> <br>
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.<br>
<br>
<br>
<b>Security by design</b><br>
Section 5.3.4 dictates that systems should incorporate "security by
design", which is an absolutely great way to approach developing
such systems.<br>
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". <br>
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"... <br>
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.<br>
<br>
<br>
Kind regards<br>
Michael Pedersen<br>
<br>
<br>
<br>
<div class="moz-cite-prefix">On 10/08/2018 21:51, Grace Githaiga via
kictanet wrote:<br>
</div>
<blockquote type="cite" cite="mid:7c4366f49824c705fa7395b3d1d9dfba@webmail.kictanet.or.ke">
Dear Listers<br>
<br>
Please find the <i><b>Policy and Regulatory Framework on Privacy
and Data Protection </b></i>here:<br>
<a target="_blank" moz-do-not-send="true">https://www.kictanet.or.ke/?wpdmpro=policy-and-regulatory-framework-on-privacy-and-data-protection</a><i><br>
</i><br>
<p>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.</p>
<br>
<p>The Task Force is requesting for comments from the public,
which should be submitted by September 12, 2018.</p>
<br>
<p>Please feel free to share the document with your networks.</p>
<br>
Best regards<br>
<br>
<br>
Githaiga, Grace<br>
<br>
<br>
<p>Co-Convenor<br>
Kenya ICT Action Network (KICTANet)<br>
<a class="moz-txt-link-freetext" href="Twitter:@ggithaiga">Twitter:@ggithaiga</a><br>
Tel: 254722701495<br>
Skype: gracegithaiga<br>
Alternate email: <a moz-do-not-send="true">ggithaiga@hotmail.com</a><br>
Linkedin: <a target="_blank" moz-do-not-send="true">https://www.linkedin.com/in/gracegithaiga</a><br>
<a target="_blank" class="blue" href="http://www.kictanet.or.ke">www.kictanet.or.ke</a><br>
<br>
"Change only happens when ordinary people get involved, get
engaged and come together to demand it. I am asking you to
believe. Not in my ability to bring about change – but in
yours"---Barrack Obama.</p>
<br>
<br>
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</blockquote>
<br>
</blockquote><br><div id="EmailSignature">Co-Convenor<br>
Kenya ICT Action Network (KICTANet)<br>
Twitter:@ggithaiga<br>
Tel: 254722701495<br>
Skype: gracegithaiga<br>
Alternate email: <a class="normal-link" href="mailto:ggithaiga@hotmail.com">ggithaiga@hotmail.com</a><br>
Linkedin: <a href="https://www.linkedin.com/in/gracegithaiga" target="_blank" class="normal-link">https://www.linkedin.com/in/gracegithaiga</a><br>
www.kictanet.or.ke<br>
<br>
"Change only happens when ordinary people get involved, get engaged and come together to demand it. I am asking you to believe. Not in my ability to bring about change – but in yours"---Barrack Obama.</div><br></body></html>