Govt Slammed Over Proposal To Block Websites & Apps

The National Assembly on August 9, 2024, published the Bill proposing to amend the Computer Misuse and Cybercrimes Act, 2018.

Govt Slammed Over Proposal To Block Websites & Apps
Image of a blocked website. /LINKEDIN

The Kenya Information Communication Technology Action Network (KICTANet) comprising over 50 organisations in the private sector is calling for the withdrawal of a contentious clause in the proposed Computer Misuse and Cybercrime (Amendment) Bill, 2024 that would give the government powers to shut down specific websites and applications.

The National Assembly on August 9, 2024, published the Bill proposing to amend the Computer Misuse and Cybercrimes Act, 2018.

The Private Members Bill proposed by Aden Daudi Mohamed seeks to introduce five new clauses. Clause 2 aims to define terms such as access, asset, identity theft, and virtual accounts while Clause 3 wants to empower the National Computer and Cybercrimes Coordination Committee (NC4) to issue directives on websites and applications that may be rendered inaccessible within the country.

Clause 4 seeks to expand the scope of the offence of cyber harassment while clause 5 expands the scope of the offence of phishing. Clause 6 seeks to introduce the offence of unauthorised SIM swap.

A bird's eye view of Parliament as of June 6, 2024. /PARLIAMENT OF KENYA

KICTANet expressed opposition to Clause 3 in particular, which seeks to amend section 6 of the Computer Misuse and Cybercrimes Act, to grant the NC4 power to block websites and applications, “where it is proved that a website or application promotes illegal activities, child pornography, terrorism, extreme religious and cultic practices, issue a directive to render the website or application inaccessible.” 

"Given Kenya’s recent history of shutting down the Internet in June 2024 and blocking messaging applications like Telegram in November 2023, the proposal does not come as a surprise. It appears to be yet another attempt to formalise and expand government censorship," said KICTANet in a statement.

"A similar proposal was made in the Computer Misuse and Cybercrimes (Amendment) Bill, 2021, which was later withdrawn following pushback by civil society. This new clause in the bill is equally problematic and should be withdrawn."

The Think Tank for ICT policy and regulation slammed what it termed as "overly broad, ambiguous and vague language of the amendment", deeming terminologies such as “where it proved”, “promotes illegal activities” or “extreme religious and cultic practices” as bad in law. 

The bill was criticised for violating constitutional and human rights standards around rights to freedom of expression, political participation, privacy and related civil liberties, despite stating that it does not limit fundamental rights and freedoms.

KICTANet feared that implementing this clause could give the government unnecessary powers to control Kenyans' freedom of speech in whichever format and reduction of the freedoms of online platforms which offer an alternative method of free speech, including news websites.

"The implementation of the provision could lead to censorship of legitimate speech, including political dissent or religious expression. It may also pave the way for arbitrary blocking of websites and applications or invasive surveillance practices, particularly during politically sensitive times like protests and elections, if the events following the #RejectFinanceBill2024 are anything to go by. Most recently, the prosecution of David Morara Kebaso for the offence of cyber harassment signals the likelihood of more repressive action by the state against critical speech," added the statement.

The body further indicated that on the back of previous internet disruptions that have been carried out without any legal mandate or oversight, there is a risk that such a provision could lead to abuse and overreach by the NC4 due to its vague terminology, absent oversight or no limitation on the period of blocking. This would mean that any speech online or on social media that is deemed to “promote illegal activities” could be used as a basis to block the website or application indefinitely. 

"Further, and despite using the phrase “where it is proven”, it is not clear to whom the proof shall be adduced to, and there is still no clear oversight of NC4 or of the proposed powers, which could result in politically motivated censorship or disproportionate restrictions on free speech.

"The power also makes the NC4 investigator, prosecutor and judge, which goes beyond the scope of its functions under the CMCA limited to advising the government and coordinating cybercrime matters. Also, the manifest lack of due process guarantees and clear mechanisms for appealing NC4 decisions could leave websites and applications vulnerable to arbitrary and unjust restrictions," the firm added.

KICTANet further worried that the adoption of the bill in its current form could have a significant economic cost to the digital ecosystem by creating uncertainty and increasing the cost for developers, users and investors. For example, enforcing the restrictions will require significant infrastructure which could become a compliance burden by ISPs and tech firms thereby increasing the cost of doing business.

It argued that the broad nature of such powers means other users of the websites and applications are likely to be adversely affected by such restrictions, giving an example of the blocking of Telegram, which is estimated to have cost the country USD 27.02 million (Ksh4.2 billion), with similar ripple effects of the shutdown in June being felt in Burundi, Rwanda and Uganda causing a significant economic impact on users of internet and financial services.

In addition, adopting the proposal would trigger a decline in Kenya’s global rankings on internet freedom as well as its attractiveness as a favourable ICT investment destination, that is, Africa’s Silicon Savannah. 

"It is important to note that while combating illegal activities like terrorism and child sexual abuse material is legitimate, these activities are often used to justify and introduce sweeping censorship and surveillance. Human rights bodies insist that such laws must comply with the 3-part test (be necessary, proportionate and provided by law) and have clear safeguards to prevent abuse, such as independent judicial oversight," added the statement.

A person using his smartphone. /FILE