The Kenyan Supreme Court has given its approval for the Communications Authority of Kenya (CA) to install a Device Management System (DMS) on mobile phone networks to detect counterfeit devices. The decision comes after a second appeal seeking to stop the CA from rolling out the DMS was dismissed. Despite concerns from telcos, the regulator denies that the DMS has the capacity to access customer data beyond the unique identification number of mobile phones and assigned subscriber numbers.
However, Safaricom, one of the telecoms operators, has expressed concerns that the monitoring devices will give the regulator access to other customer data held by the operators. The Law Society of Kenya (LSK) filed a second appeal to stop the installation of the DMS, citing fears that it would lead to public control and eavesdropping on people’s privacy.
The CA has defended the installation of the DMS, stating that it was designed to fight counterfeits through the creation of an Equipment Identification Register (EIR), which will detect all devices, isolate the illegal ones, and deny fake ones services. The agency argues that the purveyors of counterfeit devices have become more high-tech, making detection harder. In addition to the cloning of genuine International Mobile Equipment Identification (IMEI) numbers to counterfeit devices, the CA says it is also faced with the challenge of SIM boxing, which has become the next frontier for the war against counterfeit devices.
Despite the regulator’s assurances, the LSK argues that the DMS could lead to public control and eavesdropping on people’s privacy. The lawyers faulted the Court of Appeal judges for allegedly not addressing the question of the constitutionality of the DMS and the threat it wields to the right to privacy of millions of mobile phone subscribers. The LSK believes that the case is a matter of great public interest concerning the right to privacy of virtually every mobile subscriber in Kenya.
The High Court had previously found that the CA has no mandate in combating the use of counterfeit goods in the Kenyan market, noting that the law has assigned that role to the Anti-Counterfeit Authority. It also declared the CA’s move unconstitutional, as it gave no assurance that it wouldn’t be used by third parties to access private information.
Despite the concerns raised by Safaricom and the LSK, the Court of Appeal had allowed the CA to continue developing the DMS in 2020, with the guidelines or regulations on its installation subjected to public participation. The Supreme Court has now dismissed the second appeal seeking to stop the rollout of the DMS.