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02Mar

Call for Applications: Researching and Communicating Digital Rights in Africa

Author CIPESA Posted on

Call for Applications |

The Collaboration on International ICT Policy for East and Southern Africa (CIPESA) is calling for applications from individuals interested in learning, researching and communicating digital rights for a two-day virtual training.

The training seeks to equip participants with requisite skills as well as serve as a space to build a community of interdisciplinary digital rights researchers and advocates of digital rights in Africa.

The training, scheduled for 24-25 March, 2022 targets human rights defenders, academics, media, activists, technologists, and private sector actors from Lesotho, Mozambique, Tanzania, Uganda, Zambia, and Zimbabwe.

Topics to be covered will include:

  • Key issues shaping the digital rights landscape in Africa
  • Legal and policy frameworks governing digital rights in Africa.
  • Legal research for Internet policy and digital rights analysis
  • Survey methods in digital rights research
  • Monitoring surveillance, internet shutdowns and targeted malware
  • Strategic Communication, Visuals, and Using Research for Advocacy
  • Complete this  application form
  • Deadline for application is Friday, March 17, 2022
  • Successful applicants will be notified on Monday, March 21, 2022

CIPESA will cover participants’ internet connectivity costs.

28Feb

CIPESA Joins over 125 Organisations and Academics In Submitting Letter to the UN Ad Hoc Committee on Cybercrime

Author CIPESA Writer Posted on

The Collaboration on International ICT Policy for East and Southern Africa (CIPESA) has joined over 125 organisations and academics who work to protect and advance human rights, online and offline in submitting a letter to the United Nations Ad Hoc Committee on Cybercrime. The letter stresses that the process through which the Ad Hoc Committee does its work includes robust civil society
participation throughout all stages of the development and drafting of a convention, and that
any proposed convention include human rights safeguards applicable to both its substantive and
procedural provisions. The first session of the Ad Hoc Committee, which was scheduled to begin on January 17, 2022, has been rescheduled to begin on February 28, 2022, due to the ongoing situation concerning the coronavirus disease. See the full letter below.

————————————————————————————————————————————-

December 22, 2021

H.E. Ms. Faouzia Boumaiza Mebarki

Chairperson

Ad Hoc Committee to Elaborate a Comprehensive International Convention on Countering the Use of Information and Communication Technologies for Criminal Purposes

Your Excellency,

We, the undersigned organizations and academics, work to protect and advance human rights, online and offline. Efforts to address cybercrime are of concern to us, both because cybercrime poses a threat to human rights and livelihoods, and because cybercrime laws, policies, and initiatives are currently being used to undermine people’s rights. We therefore ask that the process through which the Ad Hoc Committee does its work includes robust civil society participation throughout all stages of the development and drafting of a convention, and that any proposed convention include human rights safeguards applicable to both its substantive and procedural provisions.

Background

The proposal to elaborate a comprehensive “international convention on countering the use of information and communications technologies for criminal purposes” is being put forward at the same time that UN human rights mechanisms are raising alarms about the abuse of cybercrime laws around the world. In his 2019 report, the UN special rapporteur on the rights to freedom of peaceful assembly and of association, Clément Nyaletsossi Voule, observed, “A surge in legislation and policies aimed at combating cybercrime has also opened the door to punishing and surveilling activists and protesters in many countries around the world.” In 2019 and once again this year, the UN General Assembly expressed grave concerns that cybercrime legislation is being misused to target human rights defenders or hinder their work and endanger their safety in a manner contrary to international law. This follows years of reporting from non-governmental organizations on the human rights abuses stemming from overbroad cybercrime laws.

When the convention was first proposed, over 40 leading digital rights and human rights organizations and experts, including many signatories of this letter, urged delegations to vote against the resolution, warning that the proposed convention poses a threat to human rights.

In advance of the first session of the Ad Hoc Committee, we reiterate these concerns. If a UN convention on cybercrime is to proceed, the goal should be to combat the use of information and communications technologies for criminal purposes without endangering the fundamental rights of those it seeks to protect, so people can freely enjoy and exercise their rights, online and offline. Any proposed convention should incorporate clear and robust human rights safeguards. A convention without such safeguards or that dilutes States’ human rights obligations would place individuals at risk and make our digital presence even more insecure, each threatening fundamental human rights.

As the Ad Hoc Committee commences its work drafting the convention in the coming months, it is vitally important to apply a human rights-based approach to ensure that the proposed text is not used as a tool to stifle freedom of expression, infringe on privacy and data protection, or endanger individuals and communities at risk.

The important work of combating cybercrime should be consistent with States’ human rights obligations set forth in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and other international human rights instruments and standards. In other words, efforts to combat cybercrime should also protect, not undermine, human rights. We remind States that the same rights that individuals have offline should also be protected online.

Scope of Substantive Criminal Provisions

There is no consensus on how to tackle cybercrime at the global level or a common understanding or definition of what constitutes cybercrime. From a human rights perspective, it is essential to keep the scope of any convention on cybercrime narrow. Just because a crime might involve technology does not mean it needs to be included in the proposed convention. For example, expansive cybercrime laws often simply add penalties due to the use of a computer or device in the commission of an existing offense. The laws are especially problematic when they include content-related crimes. Vaguely worded cybercrime laws purporting to combat misinformation and online support for or glorification of terrorism and extremism, can be misused to imprison bloggers or block entire platforms in a given country. As such, they fail to comply with international freedom of expression standards. Such laws put journalists, activists, researchers, LGBTQ communities, and dissenters in danger, and can have a chilling effect on society more broadly.

Even laws that focus more narrowly on cyber-enabled crimes are used to undermine rights. Laws criminalizing unauthorized access to computer networks or systems have been used to target digital security researchers, whistleblowers, activists, and journalists. Too often, security researchers, who help keep everyone safe, are caught up in vague cybercrime laws and face criminal charges for identifying flaws in security systems. Some States have also interpreted unauthorized access laws so broadly as to effectively criminalize any and all whistleblowing; under these interpretations, any disclosure of information in violation of a corporate or government policy could be treated as “cybercrime.” Any potential convention should explicitly include a malicious intent standard, should not transform corporate or government computer use policies into criminal liability, should provide a clearly articulated and expansive public interest defense, and include clear provisions that allow security researchers to do their work without fear of prosecution.

Human Rights and Procedural Safeguards

Our private and personal information, once locked in a desk drawer, now resides on our digital devices and in the cloud. Police around the world are using an increasingly intrusive set of investigative tools to access digital evidence. Frequently, their investigations cross borders without proper safeguards and bypass the protections in mutual legal assistance treaties. In many contexts, no judicial oversight is involved, and the role of independent data protection regulators is undermined. National laws, including cybercrime legislation, are often inadequate to protect against disproportionate or unnecessary surveillance.

Any potential convention should detail robust procedural and human rights safeguards that govern criminal investigations pursued under such a convention. It should ensure that any interference with the right to privacy complies with the principles of legality, necessity, and proportionality, including by requiring independent judicial authorization of surveillance measures. It should also not forbid States from adopting additional safeguards that limit law enforcement uses of personal data, as such a prohibition would undermine privacy and data protection. Any potential convention should also reaffirm the need for States to adopt and enforce “strong, robust and comprehensive privacy legislation, including on data privacy, that complies with international human rights law in terms of safeguards, oversight and remedies to effectively protect the right to privacy.”

There is a real risk that, in an attempt to entice all States to sign a proposed UN cybercrime convention, bad human rights practices will be accommodated, resulting in a race to the bottom. Therefore, it is essential that any potential convention explicitly reinforces procedural safeguards to protect human rights and resists shortcuts around mutual assistance agreements.

Meaningful Participation

Going forward, we ask the Ad Hoc Committee to actively include civil society organizations in consultations—including those dealing with digital security and groups assisting vulnerable communities and individuals—which did not happen when this process began in 2019 or in the time since.

Accordingly, we request that the Committee:

●  Accredit interested technological and academic experts and nongovernmental groups, including those with relevant expertise in human rights but that do not have consultative status with the Economic and Social Council of the UN, in a timely and transparent manner, and allow participating groups to register multiple representatives to accommodate the remote participation across different time zones.

●  Ensure that modalities for participation recognize the diversity of non-governmental stakeholders, giving each stakeholder group adequate speaking time, since civil society, the private sector, and academia can have divergent views and interests.

●  Ensure effective participation by accredited participants, including the opportunity to receive timely access to documents, provide interpretation services, speak at the Committee’s sessions (in-person and remotely), and submit written opinions and recommendations.

●  Maintain an up-to-date, dedicated webpage with relevant information, such as practical information (details on accreditation, time/location, and remote participation), organizational documents (i.e., agendas, discussions documents, etc.), statements and other interventions by States and other stakeholders, background documents, working documents and draft outputs, and meeting reports.

Countering cybercrime should not come at the expense of the fundamental rights and dignity of those whose lives this proposed Convention will touch. States should ensure that any proposed cybercrime convention is in line with their human rights obligations, and they should oppose any proposed convention that is inconsistent with those obligations.

We would be highly appreciative if you could kindly circulate the present letter to the Ad Hoc Committee Members and publish it on the website of the Ad Hoc Committee.

Signatories,*

  1. Access Now – International
  2. Alternative ASEAN Network on Burma (ALTSEAN) – Burma
  3. Alternatives – Canada
  4. Alternative Informatics Association – Turkey
  5. AqualtuneLab – Brazil
  6. ArmSec Foundation – Armenia
  7. ARTICLE 19 – International
  8. Asociación por los Derechos Civiles (ADC) – Argentina
  9. Asociación Trinidad / Radio Viva – Trinidad
  10. Asociatia Pentru Tehnologie si Internet (ApTI) – Romania
  11. Association for Progressive Communications (APC) – International
  12. Associação Mundial de Rádios Comunitárias (Amarc Brasil) – Brazil
  13. ASEAN Parliamentarians for Human Rights (APHR)  – Southeast Asia
  14. Bangladesh NGOs Network for Radio and Communication (BNNRC) – Bangladesh
  15. BlueLink Information Network  – Bulgaria
  16. Brazilian Institute of Public Law – Brazil
  17. Cambodian Center for Human Rights (CCHR)  – Cambodia
  18. Cambodian Institute for Democracy  –  Cambodia
  19. Cambodia Journalists Alliance Association  –  Cambodia
  20. Casa de Cultura Digital de Porto Alegre – Brazil
  21. Centre for Democracy and Rule of Law – Ukraine
  22. Centre for Free Expression – Canada
  23. Centre for Multilateral Affairs – Uganda
  24. Center for Democracy & Technology – United States
  25. Center for Justice and International Law (CEJIL) – International
  26. Centro de Estudios en Libertad de Expresión y Acceso (CELE) – Argentina
  27. Civil Society Europe
  28. Coalition Direitos na Rede – Brazil
  29. Código Sur – Costa Rica
  30. Collaboration on International ICT Policy for East and Southern Africa (CIPESA) – Africa
  31. CyberHUB-AM – Armenia
  32. Data Privacy Brazil Research Association – Brazil
  33. Dataskydd – Sweden
  34. Derechos Digitales – Latin America
  35. Defending Rights & Dissent – United States
  36. Digital Citizens – Romania
  37. DigitalReach – Southeast Asia
  38. Digital Rights Watch – Australia
  39. Digital Security Lab – Ukraine
  40. Državljan D / Citizen D – Slovenia
  41. Electronic Frontier Foundation (EFF) – International
  42. Electronic Privacy Information Center (EPIC) – United States
  43. Elektronisk Forpost Norge – Norway
  44. Epicenter.works for digital rights – Austria
  45. European Center For Not-For-Profit Law (ECNL) Stichting – Europe
  46. European Civic Forum – Europe
  47. European Digital Rights (EDRi) – Europe
  48. ​​eQuality Project – Canada
  49. Fantsuam Foundation – Nigeria
  50. Free Speech Coalition  – United States
  51. Foundation for Media Alternatives (FMA) – Philippines
  52. Fundación Acceso – Central America
  53. Fundación Ciudadanía y Desarrollo de Ecuador
  54. Fundación CONSTRUIR – Bolivia
  55. Fundacion Datos Protegidos  – Chile
  56. Fundación EsLaRed de Venezuela
  57. Fundación Karisma – Colombia
  58. Fundación OpenlabEC – Ecuador
  59. Fundamedios – Ecuador
  60. Garoa Hacker Clube  –  Brazil
  61. Global Partners Digital – United Kingdom
  62. GreenNet – United Kingdom
  63. GreatFire – China
  64. Hiperderecho – Peru
  65. Homo Digitalis – Greece
  66. Human Rights in China – China
  67. Human Rights Defenders Network – Sierra Leone
  68. Human Rights Watch – International
  69. Igarapé Institute — Brazil
  70. IFEX – International
  71. Institute for Policy Research and Advocacy (ELSAM) – Indonesia
  72. The Influencer Platform – Ukraine
  73. INSM Network for Digital Rights – Iraq
  74. Internews Ukraine
  75. InternetNZ – New Zealand
  76. Instituto Beta: Internet & Democracia (IBIDEM) – Brazil
  77. Instituto Brasileiro de Defesa do Consumidor (IDEC) – Brazil
  78. Instituto Educadigital – Brazil
  79. Instituto Nupef – Brazil
  80. Instituto de Pesquisa em Direito e Tecnologia do Recife (IP.rec) – Brazil
  81. Instituto de Referência em Internet e Sociedade (IRIS) – Brazil
  82. Instituto Panameño de Derecho y Nuevas Tecnologías (IPANDETEC) – Panama
  83. Instituto para la Sociedad de la Información y la Cuarta Revolución Industrial – Peru
  84. International Commission of Jurists – International
  85. The International Federation for Human Rights (FIDH)
  86. IT-Pol – Denmark
  87. JCA-NET – Japan
  88. KICTANet – Kenya
  89. Korean Progressive Network Jinbonet – South Korea
  90. Laboratorio de Datos y Sociedad (Datysoc) – Uruguay
  91. Laboratório de Políticas Públicas e Internet (LAPIN) – Brazil
  92. Latin American Network of Surveillance, Technology and Society Studies (LAVITS)
  93. Lawyers Hub Africa
  94. Legal Initiatives for Vietnam
  95. Ligue des droits de l’Homme (LDH) – France
  96. Masaar – Technology and Law Community – Egypt
  97. Manushya Foundation – Thailand
  98. MINBYUN Lawyers for a Democratic Society – Korea
  99. Open Culture Foundation – Taiwan
  100. Open Media  – Canada
  101. Open Net Association – Korea
  102. OpenNet Africa – Uganda
  103. Panoptykon Foundation – Poland
  104. Paradigm Initiative – Nigeria
  105. Privacy International – International
  106. Radio Viva – Paraguay
  107. Red en Defensa de los Derechos Digitales (R3D) – Mexico
  108. Regional Center for Rights and Liberties  – Egypt
  109. Research ICT Africa
  110. Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) – Canada
  111. Share Foundation – Serbia
  112. Social Media Exchange (SMEX) – Lebanon, Arab Region
  113. SocialTIC – Mexico
  114. Southeast Asia Freedom of Expression Network (SAFEnet) – Southeast Asia
  115. Supporters for the Health and Rights of Workers in the Semiconductor Industry (SHARPS) – South Korea
  116. Surveillance Technology Oversight Project (STOP)  – United States
  117. Tecnología, Investigación y Comunidad (TEDIC) – Paraguay
  118. Thai Netizen Network  – Thailand
  119. Unwanted Witness – Uganda
  120. Vrijschrift – Netherlands
  121. West African Human Rights Defenders Network – Togo
  122. World Movement for Democracy – International
  123. 7amleh – The Arab Center for the Advancement of Social Media  – Arab Region

Individual Experts and Academics

  1. Jacqueline Abreu, University of São Paulo
  2. Chan-Mo Chung, Professor, Inha University School of Law
  3. Danilo Doneda, Brazilian Institute of Public Law
  4. David Kaye, Clinical Professor of Law, UC Irvine School of Law, former UN Special Rapporteur on Freedom of Opinion and Expression (2014-2020)
  5. Wolfgang Kleinwächter, Professor Emeritus, University of Aarhus; Member, Global Commission on the Stability of Cyberspace
  6. Douwe Korff, Emeritus Professor of International Law, London Metropolitan University
  7. Fabiano Menke, Federal University of Rio Grande do Sul
  8. Kyung-Sin Park, Professor, Korea University School of Law
  9. Christopher Parsons, Senior Research Associate, Citizen Lab, Munk School of Global Affairs & Public Policy at the University of Toronto
  10. Marietje Schaake, Stanford Cyber Policy Center
  11. Valerie Steeves, J.D., Ph.D., Full Professor, Department of Criminology University of Ottawa
21Feb

How the MTN Group Can Improve its Digital Human Rights Policy and Reporting

Author CIPESA Posted on

CIPESA Writer |

These proposals are made to the MTN Group in respect of its Digital Human Rights Policy. The proposals commend the positive elements of the Policy including the proclamation to respect the rights of users including in privacy, communication, access and sharing information in a free and responsible manner. The submission points to areas where the telecoms group can further improve its role in the protection of human rights.

The United Nations Guiding Principles on Business and Human Rights (UNGPs) enjoin corporate entities to act with due diligence to avoid infringements on human rights. They also provide ways through which adverse impacts on human rights can be addressed. It is therefore commendable that MTN developed a Digital Human Rights Policy and is open to commentary and suggestions for  strengthening its implementation. It is imperative that MTN takes proactive and consistent measures to comply with international human rights instruments such as the UNGPs, the leading global framework focused on business responsibility and accountability for human rights, which were unanimously endorsed by States at the United Nations in 2011.

Some of the Principles that MTN needs to pay close attention to include the following:

 Principle 11: Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.

Principle 13: The responsibility to respect human rights requires that business enterprises (a) Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Principle 15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including:

(a) A policy commitment to meet their responsibility to respect human rights;

(b) A human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights;

(c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.

Principle 23:  In all contexts, business enterprises should:

  1. Comply with all applicable laws and respect internationally recognised human rights, wherever they operate;
  2. Seek ways to honour the principles of internationally recognised human rights when faced with conflicting requirements;
  3. Treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue wherever they operate.

Respect for digital rights is also stipulated in the Declaration of Principles on Freedom of Expression and Access to Information in Africa of 2019 which MTN needs to be cognisant of as part of efforts to ensure that it upholds respect for human rights.

CIPESA Proposals to the MTN Group
The MTN Group is a market leader in various service areas in several countries where it has operations. It is also a key employer and tax payer, and by facilitating the operations of other sectors,  MTN is a key contributor to the Gross Domestic Product (GDP) and to the health of the respective countries’ economies. It is crucial that the company develops and effects a robust Digital Human Rights Policy. Notably, MTN has trailed other operators, such as Orange, Millicom and Vodafone in rolling out a digital rights policy, and in transparency reporting.

While MTN last year issued its inaugural transparency report as part of its annual reporting, there are areas of concern for which we make the following recommendations:

  1. Provide more granular and disaggregated data about the number and nature of requests MTN receives from government agencies. At present, it is not clear how many of those requests relate to the release of users’ identifying data, how many were on metadata, and how many were on rendering support to communication monitoring and interception. Besides providing such a breakdown, MTN should also explain how many requests, if any, were not adhered to and why. Further, the report should indicate which particular government departments made the requests and whether all their requests were backed by a court order.
  2. Provide more nuanced information in reporting on the Digital Human Rights Policy to enable the contextualisation of country-specific explanations of government requests. In the last report, for instance, it is difficult to comprehend the information on government requests from Uganda. Given that Uganda is one of the countries where MTN has the largest number of subscribers, and given that country’s human rights record, the numbers are inexplicably few (12 in total) compared to Congo Brazzaville (1,600), eSwatini (3,661), Ghana (1,642), Guinea Conakry (6,480), Ivory Coast (4,215), Nigeria (4,751), Rwanda (602), South Africa (15,903), South Sudan (1,748), Sudan (5,105), and Zambia (8,294).
  3. In its transparency reporting on implementation of its Digital Human Rights Policy, MTN should reflect on the role of local laws and regulations in enabling or hampering the realisation of digital human rights. What elements are supportive and which ones are retrogressive? Which grey areas need clarification or call for repeal of laws?
  4. Include in the MTN transparency report a detailed and analytical section on network disruptions, as these are highly controversial and have wide-ranging economic, public service and human rights impacts yet they are becoming endemic in many of the countries where MTN operates. Further, MTN should include information on whether it received (or demanded – as we propose it should) written justifications from regulators (or government officials and bodies who issue shutdown orders) for the shutdown orders, including citation of the specific laws and provisions under which they are issued and the situation that warranted invoking the disruption. Additionally, the MTN Group should commit to scrutinise each demand, order or request and challenge them if they are not clear, specific, written, valid or do comply with national laws. It should also keep a written record of such demands, orders or requests.
  5. The MTN Policy and reporting should have a section and actions dedicated to inclusion of marginalised groups, a key area being enabling access and accessibility for persons with disabilities. Research conducted by CIPESA showed that, in countries where it operated, MTN had not taken any deliberate efforts to make its services more accessible to persons with disabilities. Beyond the additional section, MTN should appoint / designate Inclusion and Human Rights Ambassadors, and build the capacity of internal teams to facilitate engagement and compliance with digital accessibility obligations.
  6. MTN should take a proactive stance in making its Digital Human Rights Policy, including country-specific transparency information, well publicised among users, civil society and government officials in the respective countries. This will aid the growth of knowledge about MTN policies, inspire other companies to respect human rights, and draw feedback on how MTN can further improve its human rights policies and practices.
  7. MTN should develop relationships with, and have proactive and sustained engagements with civil society, consumer groups and governments on the implementation of its Digital Human Rights Policy. Such engagements should not only be post-mortem after-the-fact reviews of reports after their publication but should be continuous and feed into the annual reporting. This engagement should also include external experts and stakeholders in the conduct of regular human rights due diligence as envisaged by Principle 15 of the UNGPs. Such engagements could also relate to raising concern on the national laws, policies and measures which pose a risk to digital rights.
  8. As part of due diligence, MTN should periodically assess and examine the impact of its enforcement of its terms and service, policies and practices to ensure they do not pose risks to individual human rights, and the extent to which they comply with the UNGPs and are consistent with its Digital Human Rights Policy. Such assessments are essential to determining the right course of action when faced with government requests and other potential human rights harms.
  9. MTN should add to its Policy and make public its position on network disruptions and outline a clear policy and the procedures detailing how it handles information requests, interception assistance requests, and disruption orders from governments.
  10. Support initiatives that work to grow access, affordability, and secure use of digital technologies, and speak out about any licensing obligations and government practices that undermine digital rights.
  11. Join key platforms that collaboratively advance a free and open internet and respect for human rights in the telecommunications sector, such as the Global Network Initiative (GNI), endorse the GSMA Principles for Driving Digital Inclusion for Persons with Disabilities, and align with local actors on corporate accountability (such as the Uganda Consortium on Corporate Accountability).
  12. MTN should at a minimum, provide simple and clear terms of service, promptly notify users of decisions made affecting them, and provide accessible redress mechanisms and effective remedies.
  13. MTN should institutionalise its commitment to digital rights by putting in place a governance structure at the country level with oversight at a senior level, train its employees on the policy, and create awareness among its customers to ensure the realisation of the policy.

CIPESA stands ready to continue to engage with MTN on ways to improve and effect its Digital Human Rights Policy. We can be contacted at [email protected].

27Jan

Data Privacy Still A Neglected Digital Right in Africa

Author CIPESA Writer Posted on

By Juliet Nanfuka |

In recent years, the threats to data privacy have evolved at a quicker pace than the development of regulatory frameworks dedicated to safeguarding the right to privacy, especially in the digital era. Currently, just over half of African countries have enacted privacy laws and policies. Still, the right to privacy is repeatedly under threat through the introduction of new laws  that  facilitate  surveillance  and  the  collection  of  biometric  data  and  limit  the  use  of  encryption. There are growing concerns that in several African countries, government agencies and private entities are collecting and processing personal data without adequate data protection frameworks, amidst weak oversight mechanisms and inadequate remedies.

Most African countries are parties to international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) which provide for the right to privacy. However, the African Charter on Human and Peoples’ Rights does not provide for the right to privacy, although its article 9 has been interpreted to encompass the right to privacy.

Meanwhile, the continent’s model instrument on privacy and data protection, the African Union Convention on Cybersecurity and Personal Data Protection, has been signed by 14 countries and only eight countries had ratified it by June 2020. Indeed, adherence to these instruments remains low.

“In recent years, various African countries have enacted  laws  and  policies  to  regulate  the  right  to  privacy.  Many of  the  laws  enacted  do  not  measure  up to  international  human  rights  standards  and  fail  to  establish  clear  and  appropriate  oversight,  redress  and  remedy mechanisms.” CIPESA Mapping and Analysis of Privacy Laws in Africa

Increased digitalisation, which was accelerated by Covid-19, has seen rising use of  technology in health, business, education, and civic participation and engagement, necessitating greater need for progressive personal data privacy policies and practices. However, as many positive developments emerged in the region so did gaps in the respect for data protection and privacy  in the numerous state responses.

See: How Surveillance, Collection of Biometric Data and Limitation of Encryption are Undermining Privacy Rights in Africa

For example, Ethiopia has embarked on a national digital identification (ID) biometric-based project which it argues will support access to services for citizens and hasten trade relations with other nations on the continent. However, the country has no comprehensive data protection law.  In 2020, the government published the draft Personal Data Protection Proclamation which is yet to come into force.

In Kenya, the Data Protection Act, 2019 which establishes the Office of the Data Protection Commissioner also prohibits the sharing of data with third parties without consent of the data subjects and requires that individuals are informed when their data is being shared and for what purposes. In December, an amendment to the Central Bank of Kenya Act addresses digital lenders that share personal data of loan defaulters with third parties could have their licenses revoked. Tactics used by lenders reportedly included calling friends and family, to shame and compel their borrowers to repay the loans.

In South Africa, the data privacy debate recently surged when the Department of Basic Education stated that high school leaving exam (National Senior Certificate) results would no longer be published on media platforms, in line with the Protection of Personal Information Act (POPIA). However, a court ruled against the department and instructed that the results be published publicly on media platforms and newspapers. Historically, the results have been made available with students identified through their ID numbers or exam numbers. The Department argued that in order to publish the results, it would have to seek consent from every pupil per the POPIA.

Private entities in South Africa have also come under scrutiny for their surveillance systems’ compliance with privacy regulations and their data privacy practices. Among these entities is Vumacam, which in 2021 announced that it was gearing up to instal additional “hundreds of thousands of cameras” in the country. Vumacam currently has over 5,000 cameras that have been installed in Johannesburg suburbs since 2019.

The concerns raised about private surveillance actors in South Africa echo those that have emerged about state actors in Botswana, Equatorial Guinea, Kenya, Morocco, Nigeria, Uganda, Zambia, and Zimbabwe who have heavily invested in state-run video surveillance systems commonly referred to as “Safe Cities” – which in the absence of sufficient safeguards, present risks through their collection and processing of personal data.

Indeed, there are concerns on the true extent to which governments are committed to ensuring citizens’ data privacy rights. In 2019, Clément Voule, the United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, stated that a surge in legislation and policies aimed at combating cybercrime had also opened the door to punishing and surveilling activists and protesters in many countries around the world.

See this Mapping and Analysis of Privacy Laws in Africa

Among the ways in which data privacy is being undermined through legislation and policy is by increasing restrictions to the use of anonymity and encryption – both of which are fundamental to upholding other rights including press freedom, access to information and freedom of expression. States fear the use of anonymisation and encryption tools will hamper their capacity to fight terrorism and crime.

See this Policy Brief on How African States Are Undermining the Use of Encryption

Anonymity and encryption protect privacy, and without effective protection of the right to privacy, the right of individuals to communicate anonymously and without fear of their communications being unlawfully detected cannot be guaranteed. Whether used to protect sensitive information or to verify identities, individuals and corporations alike benefit from cryptographic software in a world that is becoming increasingly networked.

In the absence of robust oversight, legal and practical safeguards, and the selective application of data protection laws, data privacy remains a primary concern for digital users in several African countries.  This is compounded by  governments who continue to encourage and support an enabling environment that facilitates efforts by state and non-state actors to undermine privacy-related rights at the cost of numerous digital rights in Africa.

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This Data Privacy Day (January 28), the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) reaffirms its commitment towards advancing effective policy that shapes and informs a progressive data privacy landscape in Africa. See some of our blogs and indepth research reports on data privacy and protection in Africa.

27Jan

Centering Digital Rights and the Digital Economy in Encryption Regulation

Author CIPESA Writer Posted on

By CIPESA Writer |

In many African countries, the regulation of the use of encryption considers “national security” as the predominant concern and gives limited consideration to other areas that would benefit from the use of secure tools and technologies. Accordingly, many countries in the region are saddled with laws that unreasonably limit the use of encryption by individuals and businesses, which in turn undermine digital rights and the digital economy.

Encryption technologies enable users of digital technologies, including the internet and messaging services, to protect the confidentiality of their data and communications from unwarranted interception, observation and intrusion. Such protections are essential for businesses to thrive and be resilient, in addition to being key considerations by their customers. Those protections are crucial for individuals to enjoy their rights to privacy, free expression, and public participation.

As the world marks the Data Privacy Day on January 28, it is imperative that reflection is drawn onto Africa’s performance in regards to the role that encryption regulation plays in human rights protection online and promoting the digital economy.

The Digital Economy

The digital economy in Africa is steadily growing and contributes significantly to countries’ Gross Domestic Product (GDP), besides being a notable direct employer.  As of the end of 2021, around 33% of individuals in Africa used the internet, while there were eight mobile cellular telephones for every 10 individuals in the region, according to the International Telecommunications Union (ITU) figures.

Across the continent there has been significant growth in the penetration, access, and usage of Information and Communications Technologies (ICT). At the same time, the use of ICT is taking centre stage in education, health, economic, and governance sectors. It is also driving financial inclusion, with fintechs proliferating at high speed. In 2020, mobile technologies and services generated more than USD 130 billion of economic value added (or 8% of GDP) in Sub-Saharan Africa, according to the GSMA. In that year, the value of transactions on mobile money platforms in the region reached USD 490 billion.

Many governments are undertaking digitalisation programmes and have prioritised the integration of technology into more sectors to drive economic and social transformation. However, the growing rate of digital transformation in Africa is creating new cybersecurity threats which must be addressed to unlock new pathways for technology-enabled  economic growth, innovation, job creation and service delivery.

Regulation that facilitates the use of strong encryption by individuals and companies as opposed to limitation and prohibition of use is one way of nipping those risks in the bud and building trust and confidence to embrace and participate in the digital economy.

Various countries’ laws require registration and licensing of encryption service providers, and regulators have extensive powers to prohibit the use of some encryption technologies. Moreover, offering encryption services without licenses attracts penalties, as does failure to hand over secret encryption codes to state authorities, or using prohibited encryption tools. How African Countries Undermine Use of Encryption.

In 2021, research by the Internet Society (ISOC) showed that laws that undermine encryption can significantly harm the national economy, with the single biggest source of adverse economic effects being the indirect threat that such laws pose for trust in the internet and digital services. This reduced trust in data security depresses aggregate demand across the digital economy and induces firms to incur higher costs in attempts to build trust in their services.

Digital Rights

Compelled assistance by service providers as part of interception of communications, including the requirement to decrypt encrypted data and communications or disclose encryption keys gives governments and their agencies unfettered access to personal data, undermining citizens’ right to privacy and various other digital rights. Countries including Benin, Gabon, Namibia, Niger, Nigeria, Sierra Leone, and Zimbabwe prohibit service providers from providing any communications services that cannot be lawfully intercepted.

Such prohibitive regulations undermine digital rights in similar ways to laws on surveillance, which impose undue liability on intermediaries, and fail to provide for strong judicial oversight over surveillance operations. Meanwhile, data localisation requirements in some countries further grant authorities easier access to data for decryption and surveillance purposes with or without compelled assistance, “as they would not need to go through foreign countries’ or intermediaries’ data management protocols to access this data”, as highlighted by recent CIPESA research. Combined with mandatory SIM card registration and growing biometric databases, they thus contribute to the regressive situation for online freedom in a region fraught with human rights abuses and violations.

Securitising Encryption

Various countries regulate the use of encryption with national security as the sole key consideration. In Ivory Coast, the Telecommunications Regulatory Authority (ARTCI) is tasked to ensure that no service provider employs encryption that is contrary to public order or which undermines the interests of national defence, internal or external security of the state. Similarly, in the Central African Republic, the Electronic Communications Law of 2018 empowers the security minister to approve encryption services “based on the need to preserve the internal and external security of the state and national defence.”

Moroccan legislation restricts the import and use of encryption “to prevent its use for illegal purposes, and to protect the interests of national defence and the internal or external security of the State.” In that spirit, in 2015, the responsibility for authorising and monitoring encryption in Morocco was moved from the civilian National Telecommunications Regulatory Agency (ANRT) to the military’s General Directorate for the Security of Information Systems (DGSSI).

In Algeria, the acquisition and use of encryption by individuals and organisations must be authorised by the Regulatory Authority of Post and Electronic Communications (ARPCE) after approval by the Ministry of Defence and the Ministry of the Interior. Further, Algerian law requires that the type and nature of the equipment that will be used, list of cryptography algorithms, the size of the encryption keys, the type of virtual private network (VPN) used, the authentication methods, and the Public IP address, be provided to the regulator while applying for authorisation.

Many other countries require registration, while also requiring service providers to disclose the technical characteristics of the cryptology means, and the source code of the software used. Concerningly, some countries (including Benin, Gabon, Namibia, Niger, Nigeria, Sierra Leone, and Zimbabwe) prohibit service providers from providing any communications services that cannot be lawfully intercepted.

Overall, these limitations to the use of encryption go against Principle 40(3) of the Declaration of Principles on Freedom of Expression and Access to Information in Africa, which provides that “States shall not adopt laws or other measures prohibiting or weakening encryption, including backdoors, key escrows, and data localisation requirements unless such measures are justifiable and compatible with international human rights law and standards.”

Ultimately, all laws that place undue restrictions on the use of encryption tools should be repealed.

To promote the use of encryption in the region, it is imperative to desist from the current trends towards securitisation of encryption regulation. While governments often require surveillance to curb crime, laws should not outrightly prohibit or criminalise the use of encryption technologies. Rather, they should be supportive of legitimate state interests, which  also robustly protect digital rights and support growth of the digital economy.

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